Marijuana 1AC – GSU
Plan
The United States should remove criminal and civil penalties for marihuana on the
grounds that it violates the disparate impact standard.
Inherency
Marijuana legalization is inevitable
a. Momentum and Tax Revenue mean full legalization
Armentano 13 (Deputy Director of National Organization for the Reform of Marijuana Laws)
(Paul, Marijuana Legalization Is Inevitable And It's Time For The Feds To Admit It, AUG. 29, 2013,
http://www.businessinsider.com/marijuana-legalization-is-inevitable-2013-8)
Writing in a recently published report by the Washington, DC think-tank The Brookings Institute, authors
E.J. Dionne and William Galston concluded, “In less than a decade, public opinion has shifted
dramatically toward support for the legalization of marijuana. … Demographic change and widespread
public experience using marijuana imply that opposition to legalization will never again return to the
levels seen in the 1980s. The strong consensus that formed the foundation for many of today’s stringent
marijuana laws has crumbled.”
It certainly has. Never in modern history has there existed greater public support for ending the nation's
nearly century-long experiment with pot prohibition and replacing it with a system legalization and
regulation. The proof is in the polls – and at the ballot box.
In November, 55 percent of voters in two states, Colorado and Washington, decided in favor of measures
legalizing the personal use, commercial production, and retail sales of cannabis to adults over the age of
21. Perhaps most notably, in Colorado, pot proved to be far more popular with voters than did the
President! In the months since these historic votes, national public support for marijuana law reform has
only gained momentum.
According to a recent Reason Magazine-Rupe nationwide survey, more than nine out of ten US adults say
that people who possess or consume small quantities of cannabis should not face jail time.
A May 2013 nationwide Fox News telephone poll reported that 85 percent of voters support allowing
adults to use cannabis for therapeutic purposes. The total is an increase in support of four percent since
Fox last polled the question in 2010 and is the highest level of public support for the issue ever reported
in a scientific poll.
Moreover, a highly publicized national survey recently commissioned by the Pew Research Center
reports that 72 percent of Americans now believe that "government efforts to enforce marijuana laws cost
more than they are worth.” Sixty percent of Americans say that the government should no longer enforce
federal anti-marijuana laws in states that have approved of its use.
Likewise, a December 2012 Angus Reid national sampling of US voters, 66 percent of Americans say
that they expect cannabis to be legal within the next ten years.
But Americans may not have to wait that long. Ballot measures to legalize and regulate the plant’s adult
use are expected in several additional states, including Alaska, California, Maine, and Oregon. Voters in
these and other states are already on board. Recently published polls by survey leaders Gallup, Pew,
Quinnipiac University, and Public Policy Polling all find that far more Americans now favor legalizing
marijuana for adults than believe in its continued prohibition. Why the dramatic shift in public opinion?
The answer should be obvious. The ongoing enforcement of cannabis prohibition financially burdens
taxpayers, encroaches upon civil liberties, engenders disrespect for the law, impedes legitimate scientific
research into the plant's medicinal properties, and disproportionately impacts communities of color.
Furthermore, the criminalization of cannabis simply doesn't work.
b. Demographics
Walker 14 (senior policy analyst for FDL and the Just Sat Now campaign)
(Jon, After Legalization: Understanding the Future of Marijuana Policy, pg 1-2)
There's no longer a question of whether marijuana will be legalized in the United States, only a question
of when and how. The historic 2012 passage of marijuana legalization ballot initiatives in Colorado and
Washington State made that clear.
The idea may seem unbelievable to those who grew up during the War on Drugs, and who were subjected
to countless government-funded anti-pot public service announcements. The simple fact is that marijuana
legalization has become increasingly inevitable. It may not happen immediately or all at once, but legal
and social trends are heading in that direction.
Once we accept that legalization is inevitable, the important question becomes how marijuana is
legalized. For each of the wide variety of legal consumer goods, the federal government has a distinct approach. Apples are legal,
and they can be sold to anyone and grown by almost anyone. Distilled alcohol is legal, but only those over 21 can buy it, only
specially licensed stores can sell it, and only licensed distillers can produce it. Similarly, handguns are legal but are often subject to
many restrictions, including background checks and permit requirements. Morphine is legal, but only in specific medical settings
under a doctor's supervision; outside of that, its use and sale is a serious crime.
While I am an advocate and activist for legalization, this book is not my Utopian vision of how marijuana legalization should
proceed. The future depicted in these pages is not exactly the one I want, nor are the regulatory and legal systems described
necessarily the ones I think would work best. This is not my perfect world, nor simply a how-to guide for regulating cannabis.
Rather, this look forward is based on historical examples, current trends, past legislation, and my experience as a political strategist.
The fact is, politics and regulation are often very messy. They are driven by painful compromises, ideological arguments, greed, and
sometimes good old-fashioned stupidity. If people really want to shape policy, they need to understand the forces at play. I've tried
my best to leave my personal bias at the door and instead take an objective look at existing data and information—relating to
marijuana and other products—to construct the most likely outcome.
As the public makes up its collective mind about whether or not marijuana should be legal, it is important to start considering the
next big step: How exactly will we, as a country, treat and regulate marijuana? By laying out what I think is the most likely
outcome, I want to get people thinking about the dozens of questions, big and small, that will emerge once marijuana moves from
the black market to the legal market, to prepare them for the many smaller political fights that lie ahead. I want people to think about
the extent to which the government should regulate marijuana and what our attitudes toward it as a society should be.
The inevitability of marijuana legalization is clear from the polling and demographic data. In 1995, Gallup
found that only 25 percent of Americans thought marijuana should be legal, while 73 percent thought it should remain illegal. But
from the mid-'90s onward, support for marijuana legalization has grown steadily and significantly. By2013, there had been a sea
change in public opinion. That was the first year Gallup found a majority of the public, 58 percent, thought marijuana should be
legal, while only 39 percent thought it should remain illegal.1
The dramatic shift in the politics surrounding marijuana use over the past three decades can be illustrated with the stories of three
individuals. Back in 1987, during the height of Ronald Reagan's anti-drug campaign, the president nominated Douglas Howard
Ginsburg for the Supreme Court. However, once it was revealed Ginsburg had used marijuana several years earlier, it created such a
political firestorm that he withdrew his name from consideration. By 1992, Bill Clinton admitted to trying marijuana after being
asked a direct question about it on the presidential campaign, but he did his best to downplay his experimentation by famously
saying, "I experimented with marijuana a time or two, and didn't like it. I didn't inhale and I didn't try it again."- It was such a
ridiculous answer that it quickly became a punch line, yet it sent the right political message. Clinton wanted voters to know he
thought it was mistake—one they should avoid themselves. It was an embarrassing character flaw, but not a devastating one. A
mere 16 years later, when Barack Obama ran for president, the fact that he had very publicly written and talked about his frequent
past use of marijuana was a political non- issue. If anything, some saw it as a political plus, because it demonstrated his honesty and
helped Obama relate to the young voters who drove his victory. Obama's response to the same question asked of Clinton was that he
"inhaled frequently; that was the point."
Now picture how much this story will change in the next three decades . Public opinion isn't just shifting, but shifting
exponentially. In the ten years between 1995 and 2005, support for legalization grew by 11 points nationwide, from 25 to 36
percent. It grew by another 10 points in the five years between 2005 and 2010. And after the historic victories in Colorado and
Washington, support jumped to 58 percent. When the issue of marijuana legalization first appeared on the ballot in Colorado in
2006, it was roundly rejected with 41 percent voting in favor and 59 percent against it. Just six years later, public opinion had
completely flipped. In 2012, Colorado became the first state to legalize marijuana when 55 percent of voters supported Amendment
64.
To understand why this trend is destined to continue, one should start by looking at the demographics. Opinions about marijuana
heavily break down by age. In 2011, 62 percent of adults under 30 thought marijuana should be legal, while only 31 percent of
senior citizens felt the same way. A new generation in support of reform is taking over. Every year, young pro-
marijuana adults are reaching voting age, while older opponents of reform are, to put it bluntly, dying out.
At the same time, one-time opponents are changing their minds on the issue. In the not-too-distant future,
there will be a supermajority of people who support marijuana legalization. And when that happens, the
federal prohibition of marijuana will end soon after.
c.) Public agrees
Wyatt 14 (Associated Press)
(Kristen, Poll: Marijuana legalization inevitable, April 2, 2014,
http://www.usatoday.com/story/news/nation/2014/04/02/poll-marijuana-legalization-inevitable/7210215/)
Marijuana legalization in the U.S. seems inevitable to three-fourths of Americans, whether they support
it or not, according to a new poll out Wednesday.
The Pew Research Center survey on the nation's shifting attitudes about drug policy also showed
increased support for moving away from mandatory sentences for non-violent drug offenders.
The telephone survey found that 75 percent of respondents — including majorities of both supporters and
opponents of legal marijuana— think that the sale and use of pot eventually will be legal nationwide. It
was the first time that question had been asked.
Legalization is necessary but we have to do it explicitly on recognition of the
racialized impact explicitly on the basis of discrimination helps solve the residual
problems
Bouie (Slate staff writer covering politics, policy, and race) 14
(Jamelle,The Case for Marijuana Reparations, July 28 th, http://www.slate.com/articles/news_and_politics/politics/2014/07/the_case_for_marijuana_reparations_the_profits_from_drug_legalization_should.single.html)
From there, the newspaper’s editors hit the points common to any argument for legalization. “We believe that
the evidence is overwhelming that addiction and dependence are relatively minor problems, especially
compared with alcohol and tobacco,” it argues, noting the scant evidence that moderate use is harmful to
“otherwise healthy adults.” And while the Times is relatively silent on thornier issues with legalization—like
the consequences of greater marijuana intoxication on public safety or the difficulty of crafting an effective
regulatory regime—the broad point is sound. We can handle a world of legal marijuana—and the costs of not
trying have proven too great.
An element that looms large in the Times analysis is the disparate impact of marijuana enforcement on blacks
and Latinos. From 2001 to 2010, according to a 2013 report from the American Civil Liberties Union, blacks
and whites had roughly equal rates of marijuana use, with small variations from year to year. Among young
people ages 18 to 25, usage rates were higher for whites, and overall, more blacks than whites say they’ve
never tried marijuana.
Nevertheless, blacks are 3.73 times more likely than whites to be arrested for marijuana possession, with an
arrest rate of 716 per 100,000 for blacks to 192 per 100,000 for whites (compared to a national average of 256
per 100,000). What’s startling is that the total marijuana arrest rate has increased by nearly one-third since
2001, while at the same time, the rate for whites has remained constant, a sign that blacks account for the bulk
of new arrests. And this dynamic is persistent across the country, from Washington D.C.—where the arrest rate
for blacks is 8.05 times greater than for whites—to Alaska, where it’s “just” 1.6 times greater. Nationally,
nearly one-half of our 1.7 million drug arrests are for marijuana possession.
Any plan for legalization should come with a plan for reparations for those communities most damaged by our
misguided war on marijuana.
It’s true that few marijuana arrests result in prison time. Roughly 40,000 state and federal inmates have current
marijuana convictions, and the majority of those are for sale and distribution. “Less than 1 percent … are
serving time for marijuana possession alone—and in many of those cases, the possession conviction was the
result of a plea bargain involving the dismissal of more serious charges,” write drug policy scholars Beau
Kilmer, Jonathan P. Caulkins, Mark A.R. Kleiman, and Angela Hawken in Marijuana Legalization: What
Everyone Needs to Know.
But even if they don’t lead to prison, these arrests bring people into the criminal justice system. “A simple
arrest for marijuana possession can show up on criminal databases as ‘a drug arrest’ without specifying the
substance or the charge, and without clarifying even whether the person was convicted,” notes law professor
Michelle Alexander in The New Jim Crow, “These databases are then used by police and prosecutors, as well
as by employers and housing officials—an electronic record that will haunt many for life.” The ACLU, for
example, provides the story of one Texas man, Nick Smith, who spent three months in jail for possession.
Obviously, federal marijuana legalization would put an end to a world where simple possession can derail a
person’s life. But legal weed—and more importantly, a legal market for weed—won’t do anything for the
individuals and communities wrecked by our aggressive and disparate enforcement of past marijuana laws.
What’s more, it’s troubling to think of the distribution of profits in an America of legal weed. Thanks to their
criminal records, many of the young black men who were victims of marijuana policy won’t have a chance to
capitalize on the new permissive environment. Opportunities will go to mainstream businesses, run mostly by
well-off white Americans.
That’s been the situation in Colorado (where blacks are 1.9 times more likely to be arrested for marijuana
possession) where marijuana was legalized in 2012 following a statewide referendum. It’s not hard to find the
demographics on the state’s pot entrepreneurs, who—like many new business owners—rely on loans and
personal wealth to get their start, an avenue unavailable to many people of color.
For these marijuana entrepreneurs, Colorado is a vibrant market for turning a profit. According to a recent
report from the Colorado Department of Revenue, statewide demand for marijuana is at 121.4 tons a year, a 31
percent increase from previous estimates. Indeed, in its first four months of legal marijuana, the state collected
$11 million in taxes from commercial pot and $7 million from its medical cousin. It’s not hard to imagine a
national market for marijuana that reaped billions of dollars in sales and generated hundreds of millions in tax
revenue, with little going to the communities most affected by past prohibition.
In Colorado, voters have earmarked weed revenue for school improvements and other local services. Let’s say
America follows suit and adopts the state’s model for legalization and commercialization. What should we, as
a country, do with our marijuana windfall? The easy answers are the usual services and benefits: food stamps,
unemployment insurance, medical benefits, and tax cuts.
But we should think deeper. If we legalize marijuana, it won’t just be for new revenues and savings. In part, it
will be because we recognize the tremendous injury we’ve done to countless young men and women over
decades of unfair enforcement of the law. Consider Attorney General Eric Holder’s decision to sidestep
mandatory minimums on minor drug charges. “Although incarceration has a role to play in our justice system,
widespread incarceration at the federal, state, and local levels is both ineffective and unsustainable,” he said.
“It imposes a significant economic burden—totaling $80 billion in 2010 alone—and it comes with human and
moral costs that are impossible to calculate.” I wouldn’t be shocked to hear similar language from pro-weed
politicians if marijuana legalization becomes a major national issue.
We can’t always heal injury, but we can acknowledge and compensate for it. Any plan for legalization should
come with a plan for reparations for those communities most damaged by our misguided war on marijuana.
That doesn’t mean individual payments—the logistics are too difficult—as much as it does policies for affected
communities, from job training and educational services to something like My Brother’s Keeper, all funded by
a surtax on marijuana sales and distribution.
We can’t wash our hands of our past mistakes. The war on drugs—and the war on weed in particular—has
been a disaster and a burden for millions of Americans and their communities. We can’t fix all of the damage,
but as we wind down the conflict and liberalize our laws, we should do our best to make amends.
Court should take the lead and strike down the prohibition – no chance it passes
strict scrutiny
Weber (J.D. Candidate, Indiana University Robert H. McKinney School of Law; B.S., University of Evansville)
13
(Tim, COULD GOVERNMENT PROHIBITION OF MARIJUANA PASS STRICT SCRUTINY?, INDIANA
LAW REVIEW Vol. 46:529)
In all likelihood, the current federal prohibition of marijuana would fail both requirements for constitutionality
under a strict scrutiny analysis. There exists no compelling government interest related to morality, crime or
health the government can point to in support of its prohibition of marijuana, and the current prohibition is not
narrowly tailored because it outlaws the production of the cash crop industrial hemp as well as marijuana for
its medically recognized uses.
In general, courts tread the boundaries of Article 3 rarely, and then only with caution and care as evidenced by
the refusal of courts to address political questions.237 This respect of separation of powers on the part of the
courts is an important aspect of the United States political system and is something that should be dealt with
using the utmost gravity. That being said, courts since Marbury v. Madison238 have been the final arbiters
regarding what is and is not constitutional, as well as interpreters of what the Constitution actually says.239 It
is in this spirit that many of the civil rights we enjoy today have been extracted out of a document that is in all
actuality quite bare. Segregation could still be in place today without the bravery and tact displayed by the
Court in Brown v. Board of Education.240
Although there is an argument to be made that it is Congress’s responsibility to withdraw the federal
prohibition of marijuana rather than the Court’s duty to declare it invalid, the argument is a weak one given the
Court’s indispensable role in developing, refining, and enforcing civil rights. If the Court adhered to such a
strict belief, judicial review would have no meaning, and we would have no fundamental right to privacy,
travel, access to the courts, or to vote. In short, although it is not in the Court’s interest, or power, to
nonchalantly gallivant into the realms properly occupied by the legislative and executive branches, that is not
the case here. Here, there exists a constitutional right more important than any other, the interest we all have as
humans in our own person, which must be accorded its rightful status with all due haste, lest the infringements
on this right grow in number and magnitude.
IV. THE LOGICALLY DEFENSIBLE POSITION: A CONCLUSION OF SORTS
In life, there are few things we should take for granted, few things that cannot be taken from us. Our own body
is one of these things. The decision of what to do with our own self is solely our own, and this decision can
never be fully taken away. Even a prisoner may decide to sit or stand, pray or curse. This right we have in what
happens to our body has no recognition in our current system of ordered liberty despite a long list of Supreme
Court opinions opining about its importance.241 In light of this, the Court should recognize, in more than
dicta, a fundamental right to bodily autonomy. Furthermore, the cannabis plant’s history in the United States
dates back to the early colonies, where it was a mandatory crop for everyone to grow. In fact, marijuana use
itself was illegalized for mainly political reasons. Given this history, a fair comparison of this naturally
occurring plant to tobacco and alcohol, both legal vices in the United States, overwhelmingly suggests that
marijuana should fall under a bodily autonomy right as it is far less harmful than these legal substances.
Finally, there exists no compelling government interest in infringing on the bodily autonomy right by way of
marijuana prohibition related to morality, the connection between marijuana and crime, or safeguarding the
public health. Even if a dark horse compelling interest were to emerge, the fact that the current federal
prohibition of marijuana also prohibits growing industrial hemp or using marijuana for its medical purposes
means said prohibition is in no way narrowly tailored.
Therefore, the Supreme Court should: (1) recognize a fundamental right to bodily autonomy; (2) include
marijuana use in this right; and (3) strike down the current federal prohibition of marijuana for failing to meet
strict scrutiny.
Racism
Marijuana prohibition creates long term racialized violence beyond incarceration –
denial of social services and exclusion from politics result – only legalization solves
Duncan (University of Connecticut School of Law, J.D. Candidate 2009) 9
(Cynthia S., THE NEED FOR CHANGE: AN ECONOMIC ANALYSIS OF MARIJUANA POLICY, 41 Conn. L.
Rev. 1701, LN)
The racial disparity associated with overall drug enforcement is a serious issue. n101 Blacks are arrested for
drug abuse violations at a rate that is alarmingly inconsistent with the percentage of the overall population they
represent. n102 Although the Supreme Court has declared that there is [*1722] no constitutional right to be
free from the disparate impact of facially neutral policies, n103 there is widespread concern that the
enforcement of facially neutral drug laws is anything but neutral. n104 This concern is especially warranted
with the enforcement of marijuana possession laws, n105 where the figures relating to black arrests are
particularly disturbing. n106 [*1723] There are roughly six times as many whites as blacks in this country.
n107 Both races use marijuana at approximately the same rates, which means that six times as many whites as
blacks usemarijuana; n108 yet blacks make up a disproportionate percentage of those arrested for possession.
n109 This fact is most worrisome given that blacks are also convicted and sentenced at higher rates. n110 From
arrest to conviction, there is little doubt that marijuana prohibition unduly impacts minorities.
Arrest and conviction for a marijuana offense are often not the worst punishments. n111 Efforts have been
made to reduce the harshness of sentences for marijuana offenses, n112but there is a wide range of collateral
sanctions that are triggered by any conviction, whether felony or misdemeanor. n113 Some collateral sanctions
attach at arrest, whether or not there is a subsequent conviction. n114 These sanctions can include: loss of
professional licenses, barriers to employment opportunities, "loss of educational aid, driver's license
suspension, and bars on adoption, voting and jury service." n115 Collateral sanctions have a greater impact on
the poor and on racial minorities. Under federal law, anyone convicted of a felony [*1724] "which has as an
element the possession, use, or distribution of a controlled substance . . . shall not be eligible" for food stamps
or "assistance under any State program funded under . . . title IV of the Social Security Act." n116 The duration
of the loss of assistance can be limited by state law, but the federal statute sets no limit, meaning the ban on
assistance can be a lifetime ban. n117 In addition, any marijuana conviction can lead to eviction from public
housing. n118 These collateral sanctions do not discriminate. Those individuals convicted of low-level
possession are subject to many of the same collateral sanctions as those convicted for dealing in large
quantities.n119 The loss of public assistance, or any sanction that interferes with the ability to work or to drive,
can have a more burdensome impact on low-income and minority individuals.
The ban on public assistance is not the only collateral sanction that may target low-income and minority
individuals more harshly. Students convicted of any offense, under either state or federal law, "involving the
possession or sale of a controlled substance" while they are receiving any federal student aid under the Higher
Education Act (HEA) lose their eligibility "to receive any grant, loan, or work assistance" for at least a year; in
the case of a second conviction for selling, eligibility for aid is lost for life. n120 This is a softening of the
original provision, which was amended to include only those drug convictions that occur "while a student is
enrolled and receiving federal financial aid." n121 Prior to being amended, the loss of student aid applied to
any conviction, either before or during [*1725] college. n122 According to the Government Accountability
Office (GAO), every year an estimated 17,000 to 20,000 lose access to Pell Grants and 29,000 to 41,000 lose
access to student loans. n123 This law may "primarily affect[] low-income students and exempt[] the wealthy,
who don't need aid to attend college," and target young blacks, "who are disproportionately prosecuted for drug
offenses and already less likely to complete college."n124 This law raises the possibility that mere youthful
indiscretions n125 could prevent low-income or minority individuals from ever reaping the benefits of a
college education.n126
Marijuana prohibition has proven to be too costly, both financially and socially. Despite the fact that billions of
dollars are spent every year to prevent marijuana consumption, the best available data suggests that the
expenditures are simply not buying much. It is unlikely that increased funding or stronger penalties will solve
the problem. Federal and state efforts to reduce marijuana production and use through prohibition have been
ineffective, and those efforts have been far less than equitably applied across economic and racial divisions.
Those members of our society most in need are denied access to vital public assistance programs, in many
instances for an offense that in an increasing number of jurisdictions is a low level enforcement priority. n127
Marijuana prohibition is causing too much harm- completely out of proportion to the purported harm it is
[*1726] preventing. n128 Since it is unlikely that any other prohibition strategy for curtailing consumption
would be more effective than the current model, there is a strong case that the entire enterprise is futile, and a
good argument for abandoning it.
III. State Decriminalization in the Shadow of Federal Prohibition
Having evaluated the ineffectiveness, as well as the inequity and inefficiency, of the efforts to reduce supply
and demand that are fueled by the federal policy of marijuana prohibition, it is necessary to examine the system
of decriminalization that is evolving across the country at state and local levels. It is difficult to assess the
political and administrative feasibility of decriminalization. Politically, the system in this country is constantly
changing. Every new election and legislative session brings changes to the laws pertaining to recreational and
medical marijuana use. n129 As states and municipalities adopt a more liberal attitude toward marijuana use
while the federal government maintains a policy of prohibition, n130 the system becomes increasingly difficult
to administer. n131
Decriminalization of marijuana is a wholly unsatisfactory compromise between strict prohibition and
legalization. n132 Decriminalization carries with it many of the same societal costs associated with total
prohibition n133 and retains almost every negative aspect associated with prohibition. n134 [*1727]
Decriminalization as it currently exists removes the criminal sanctions for possession of marijuana for personal
use n135 without providing for a non- criminal method of obtaining it; n136 therefore, all trafficking remains
illegal.n137 The enforcement and deterrence efforts aimed at trafficking remain the same as under strict
prohibition, n138 which means that the racial and economic disparities associated with these methods are also
retained. [*1728] In addition, because decriminalization offers no new methods of deterring underage use,
there is no positive impact on the underage usage rates attributable to decriminalization. n139
Although experience with decriminalization has shown it does not have an appreciable effect on overall usage
rates, n140 any increase in demand associated with an easing of possession sanctions is still supplied "entirely
by the black market." n141 Removing the criminal sanctions for personal use does not "dismantle the
destructive and dangerous criminal supply networks that have taken deep root" in our own backyard. n142 Not
only does decriminalization do nothing to remove the criminal networks, it may increase their profits. n143
"Thus, decriminalization is likely to prove to be the worst of all possible policies when it comes to the drugdealing aspect of the marijuana problem." n144
Thirteen states have now adopted some form of decriminalization, n145 but without decriminalization of
marijuana at the federal level, this simply creates a system that puts state and local drug measures easing the
restrictions on marijuana at odds with federal laws prohibiting all marijuana use. n146 Decriminalization at the
federal level that mirrors decriminalization at the state level would only eliminate the conflict currently
existing between federal law and state and local measures. n147 Federal decriminalization would produce no
additional positive impact on the usage rates among young people, would do nothing to dismantle illegal
trafficking operations, and would maintain many of the racial and economic disparities associated with
prohibition. n148
For those opposed to strict prohibition, decriminalization of personal use may be viewed as a positive step.
n149 However, because in many ways decriminalization is no better policy than prohibition, decriminalization
as it currently exists, whether at the state or federal level, is unsuitable as a long-term solution.
IV. Legalization & Regulation
There is certainly no consensus among American voters that recreational use of marijuana should be legalized,
n150 but given the growing reluctance to impose criminal sanctions for personal recreational use, coupled with
the support for legalized medical marijuana, n151 marijuana legalization merits serious consideration. n152
Legalizing marijuana would eliminate the "destructive and dangerous criminal supply networks" of the
marijuana black market. n153 It would also remove the direct and collateral sanctions that currently fall so
harshly upon minority and low-income marijuana users. Putting an end to government prohibition of marijuana
would eliminate the need for both the [*1730] billions of dollars and the countless man-hours n154 spent
annually on what has proven to be a futile effort to appreciably reduce the availability of marijuana. n155This
Part considers a policy of legalization that would replace government prohibition with government regulation
and taxation. n156 Two possible means of regulation are discussed briefly, but the primary focus is on the
fundamental differences between legalization of marijuana and both prohibition and decriminalization.
Disparate intent standard spills over beyond marihuana and enables the broader war
on drugs - stop and frisk, disparate sentencing, and a host of aggressive policing
practices. Only court action can solve.
Johnson 2007 (Associate Dean for Academic Affairs, School of Law, University of
California at Davis) 7
(Kevin R., TAKING THE "GARBAGE" OUT IN TULIA, TEXAS: THE TABOO ON BLACK-WHITE
ROMANCE AND RACIAL PROFILING IN THE "WAR ON DRUGS", 2007 Wis. L. Rev. 283)
The Supreme Court has played a central role in the "war on drugs." In recent years, the Court has consistently
deferred to police practices in fighting crime and has greatly increased the discretion of police officers.
One commentator has gone so far as to contend that the Court has developed a jurisprudence of "drug
exceptionalism," under which the Bill of Rights gives way when the Court reviews the exercise of police
power in the war on drugs. n210 Justice John Paul Stevens observed that "no impartial observer could criticize
[the] Court for hindering the progress of the war on drugs. On the contrary, decisions like [California v.
Acevedo] will support the conclusion that this Court has become a loyal foot soldier in the Executive's fight
against crime." n211
In 1996, the Court made it difficult to challenge racial profiling in traffic stops under the Fourth Amendment
by allowing traffic violations to act as pretextual justifications for race-based stops. n212 Moreover, in
Washington v. Davis, the Court held that a violation of the Equal Protection Clause required that a facially
neutral government policy be adopted or maintained with a discriminatory intent - not simply result in a
discriminatory impact. n213 Because it is a formidable barrier to equal-protection claims, n214 legal scholars
have criticized the discriminatory-intent requirement. n215 Proving a discriminatory intent is often extremely
difficult n216 as facially neutral laws and practices may obscure racially disparate impacts. n217 Not
surprisingly, many lawsuits brought by plaintiffs claiming that the police made traffic stops based on race have
been unsuccessful under the Equal Protection Clause. n218
Over a century ago, the Court held that selective enforcement of the law based on race is unconstitutional.
n219 The Court's 1996 decision in United States v. Armstrong, however, made it extremely difficult for
plaintiffs to obtain the evidence to make this showing. n220 The Court [*313] found that the defendants were
not entitled to discovery from the government to secure the evidence necessary to prove a selective-prosecution
claim. n221 The Court held this despite the well-documented racial bias in the enforcement of the crackcocaine laws n222 and the data showing that all crack-cocaine cases that the Federal Defender's office in
question closed in 1991 involved African American defendants. n223 According to the Court, the defendants
had failed to make the threshold showing that the government had not prosecuted whites similarly situated to
the African American defendants. n224
B. Tulia as Part and Parcel of the "War on Drugs"
1. a model for restorative justice?
An analysis of the Tulia sting suggests several possible models for social change. Political action, combined
with aggressive litigation, is one of the possibilities - it unquestionably succeeded in the case of the Tulia
defendants. This success, however, is unlikely to be repeated on a regular basis.
One commentator contended that the Supreme Court's recent criminal-procedure decisions have made state and
federal legislatures focus more on punishment and less on better policing and criminal adjudication. n225 This
militates in favor of political solutions to the racial disparities in the criminal-justice system. The problem,
however, is that people of color are a "discrete and insular minority" and are the targets of prejudice, n226
which makes it difficult to prevail in the political process. To remedy that defect in the political process, the
Warren Court issued groundbreaking decisions in criminal procedure - decisions informed by a concern for
racial equality. n227
Political solutions require carefully building alliances among different groups that at times have divergent - if
not mutually exclusive - interests. The common experiences of African Americans and Latinos with the
criminal-justice system create the potential for political coalitions. n228 Such coalitions, however, are easier to
discuss in theory than to form in reality.
Activist groups, such as the NAACP and the Mexican American Legal Defense and Educational Fund, tend to
focus on the problems facing their particular community. Multiracial alliances, which are often [*315]
necessary to bring about deep and enduring social change, n229 are generally secondary to the primary focus
of race-specific activist groups. Resources are scarce and are often spent on the exigencies of the moment
rather than on more difficult, time-consuming efforts to build the necessary political alliances. n230 To
complicate matters, tensions often arise between groups. n231
Despite the convergence of their interests, different minority groups often do not form coalitions. For example, the profiling of Arabs and
Muslims in the war on terror makes it easier to rationalize that of African Americans and Latinos in the war on drugs. n232 All forms of
racial profiling rely on statistical probabilities, not individualized suspicion. n233 Given this common denominator, profiling of one group
in one area of law enforcement logically supports profiling in other areas. n234 Latino and African American advocacy groups, however,
have not been at the forefront of the advocacy against antiterror profiling.
In Tulia, local civil-rights activists and national groups like the LDF formed a loose alliance, n235 but failed to form coalitions comprised
of different racial groups. Even though there was a substantial Mexican American community in town, and four Latino defendants were
arrested in the sting, n236 the Latino community did not rally behind the Tulia defendants. n237 There unquestionably is more to this
story, but at a minimum the failure to build multiracial coalitions in Tulia suggests the difficulty in building such alliances. n238
[*316] Of course, the legal system, as in the Tulia case, may be one tool in the fight for social justice. "Innocence projects," which have
blossomed around the country, have exonerated a number of wrongly convicted defendants. n239 Such projects, however, can accept only
a limited number of cases. n240 Because institutional deficiencies are not easily addressed in individual cases, political solutions may be
the most viable way of remedying the institutional racism in the criminal-justice system.
Political mobilization, for example, helped convince the Illinois governor to place a moratorium on the death penalty given the serious
concerns with the system. n241 Political possibilities exist for halting the disparate impacts of the war on drugs. Efforts to remove the
excesses of the criminal laws, however, have encountered resistance. n242 To offer one example, proposals to decriminalize drugs have, to
this point, fallen on deaf ears. n243
2. the problem with the tulia strategy
The aggressive defense strategy employed by the Tulia defense team was a textbook example of good lawyering. It might be called
"critical race lawyering." n244 The LDF strategy was similar in many respects to the aggressive advocacy of civil-liberties icons such as
William Kunstler n245 or Arthur Kinoy. n246 Attorneys for the underdogs have long put the entire system on trial, and strived to make the
defendants' stories public. They have also sought to publicize the more general injustices in the criminal-justice system. n247
[*317] The defense attorneys in the Tulia case worked as activist lawyers, trying to bring the bigger picture of race and class into the
courtroom and beyond. Some might claim that they "played the race card" n248 - the proof of racial discrimination in the case ultimately
held the key to the defense's victory. Nationally, the public reacted negatively to the railroading of the African American defendants in
Tulia, which itself is a victory of sorts and reveals changing racial sensibilities in the United States.
Unfortunately, when it comes to social change, the Tulia case may be exceptional. Absent a monumental effort by a group of dedicated and
skilled pro bono attorneys, the defendants would not have been vindicated. Without a series of New York Times editorials and a 60
Minutes story, the Texas governor, in all likelihood, would not have pardoned the Tulia defendants. The resources expended in their
defense, as well as their good fortune, were considerable; these circumstances are unlikely to be replicated in a routine drug case. Poorly
paid public defenders with paltry resources handle most small-time drug cases. n249 Although the Tulia case had a happy ending for the
defendants, institutional reform is necessary to minimize the possibility of similar cases arising in the future.
The Tulia case also demonstrated the need for legal change. Current Fourth Amendment and Equal Protection
law is woefully inadequate to ensure fairness and evenhandedness for the run-of-the-mill defendant in a drug
case. Absent institutional reform, cases like Tulia will no doubt arise again. Similar abuses are likely to go
undetected and uncorrected. National outrage over the Tulia incident was unfortunately short-lived; the story
quickly left the newspapers and the national consciousness. In the end, institutional racism n250 has proven to
be extremely difficult to remove from the criminal-justice system. n251
The plan is a major material step to breaking down the invisibility for whiteness
and the direct structural violence that it creates
Halewood (Professor of Law, Albany Law School) 9
(Peter, DEFINING RACE: LAYING DOWN THE LAW: POST-RACIALISM AND THE DE-RACINATION
PROJECT, 72 Alb. L. Rev. 1047, LN)
*we do not endorse ableist language*
White privilege is, in short, the problem. n1
The essay struck a chord with a segment of the electorate who perceived not only a racial double standard in the American public's
interpretation of that election cycle but who I believe also felt that this episode crystallized a much larger racial double standard in
American society as a whole. It was also a kind of collective light-bulb-moment about the law in some respects: how could nearly sixty
years of civil rights law since Brown v. Board of Education have had so little apparent impact on white privilege and have produced so
little critical white race consciousness? n2 Had civil rights and anti-discrimination law - surely aspects of the social construction of race actually contributed to this state of affairs, such that the racial double standard made plain in the presidential election had been to some
extent enabled by the very law designed to undo race discrimination? If racial justice is about remembering racial injury, had our law made
that memory impossible, erased by official colorblindness? n3 And why was this all happening - who precisely [*1049] benefits?
Though Barack Obama of course went on to be elected President, the vivid memory of reading Wise's essay remains and disrupts my post-election euphoria.
n4 Wise interpreted a basic truth of American society. He captured a central paradox of American life: that, despite having no biological/genetic basis, race
nonetheless controls the American perception of reality, and whiteness is the lens through which all interpretation ultimately is refracted. Because whiteness is
largely invisible to white Americans, America's racial problem has for the most part been understood by whites as a problem of (real or imagined) black
grievances. Self-congratulation on having achieved a post-racial society is both premature and suspect, for encoded in claims of post-racialism is a sort of
white triumphalism, a sense that race and racism have finally been delegitimized as the basis for black grievance. Whiteness, however, continues to flourish
largely unexamined, operating as it does - for whites at least - largely out of sight. Post-racialism in this sense is dangerous because it de-racinates our politics.
Achieving a post-white society is a far more difficult goal: to
create among whites a [*1050] critical self-awareness of white
privilege and white racial identity would challenge the epistemic and interpretive pillars of whiteness, chiefly
objectivity and normalcy, that have guaranteed the massive material subsidies that have accompanied whiteness from
slavery forward - wealth, power, and control of the means of reproduction of those assets. n5
These material benefits are at the core of this system but not emphasized often enough; racism ultimately advances the interests of capital
and wealth by instituting and maintaining a system of racial reward and preference. Behind the obvious racialization of American life lies
the equally obvious but often less controversial reality of massive economic inequality. Capital and elite interests are very
unlikely to relinquish the advantages of this system and Barack Obama's election alone does not signal a change in that
equation. And decades of civil rights law culminating in the hegemony of colorblindness in constitutional theory
may have unwittingly contributed to this state of affairs. These same decades, after all, have seen a rapid and pronounced
expansion of economic inequality here, lending considerable credence to the critical race theory view that formal equality models leave
untouched or even reinforce substantive inequality. Colorblindness and post-racialism may also contribute to this inequality. What then is
the relation of law to post-racialism and to post-whiteness, and what critical readings of law can we offer to disturb the racial-industrial
complex?
If whiteness is the ideology, then corrective justice, formal equality, negative rights, and color blindness have been the
jurisprudential tools that implement and operationalize it. Thus distributive justice, substantive equality,
positive rights, and race consciousness are likely to threaten it. Post-racialism, for its part, cements the former tool set and
marginalizes the latter. De-racination, as a goal of politics and public policy, rewards and solidifies whiteness because whiteness is seen and experienced by
whites as a non-racial form of identity - it is merely a constellation of reified and "naturally occurring" privileges. It is an open question whether our law can
be bent to the purpose of revealing those contradictions and the self-interest endemic in the de- [*1051] racination or post-racial legal project. n6 Liberal
legalism and the modern liberal state are oriented along a set of assumptions that systematically and doctrinally favor whiteness: universality over particularity,
objectivity over perspective, neutrality over partiality, form over substance, principle over pragmatism. Whiteness - like maleness, in Catharine MacKinnon's
view - assumes the "point of view is the standard for point-of-viewlessness" and benefits by being identified with the first term in each of the forgoing dyads,
i.e., universality, objectivity, neutrality, formality, and principle. n7 Non-whiteness is then by definition particular, perspectival, partial, informal, and
unprincipled, making it jurisprudentially inferior.
Post-modern critiques of law have done a lot to dismantle the former strong consensus around the liberal legal project. Critical legal studies, feminist legal
theory, and critical race theory have torn at the edges of liberal legalism such that it is no longer possible to merely assert it without argumentation. But we are
nonetheless a long way from being able to assert the existence of a new consensus around the opposite principles, i.e. substantive equality, distributive justice,
positive rights, and race consciousness. A
sustained and unflinching "look to the bottom," on the model of critical race theory, may
yield that new consensus and be able to resist the shortsighted urge to de-racinate our law. Looking to the
bottom is the jurisprudential method by which the law seeks to ground claims to justice in the material reality
of oppression which nonwhites experience in our society. n8 It is a corrective to the metaphorical overflight that law has traditionally
done on these matters, pronouncing on oppression from an altitude of 30,000 feet.
Were we to measure inequality substantively rather than formally, to quantify subordination as an impact on
real people rather than seek only to identify impermissible discrimination, to [*1052] measure whether distributions of social goods
are just overall rather than focusing on whether discrete transactions were fair, then we would be looking to the bottom and making
place and perspective in the hierarchy of American civil rights discourse count for something. No longer would we discount the material
facts of oppression in favor of a narrative of neutral, colorblind fairness that maintains racial hierarchy in the
interest of capital accumulation.
Law and the modern state have achieved legitimacy by deploying the liberal ideology of universal values and objectivity, strenuously
objected to by critical legal theory. Garden variety mind/body dualism allows liberal legalism to privilege disembodied and
decontextualized interpretations of law and society, key to maintaining the hegemonic discourse of neutral,
objective principle. n9 This has been accomplished at the cost of repressing a whole discourse around group
experiences of oppression and disparate impact, and policy options for redressing that oppression, that do not comport
with the legalism of the modern liberal state. The persistence of whiteness and white privilege combined now with claims to
post-racialism and de-racination is a potent and dangerous mixture. The debate will continue to be about whether we should further
privatize responses to subordination, leaving them to the market and jettisoning even the meager state protections we still have, or whether
we build a new and robust public commitment to progressive legalism and substantive measures of social justice. We just do not know
whether law is up to the task.
Disparate intent enshrines white supremacy in American constitutional interpretation
– the plan spurs lasting change that is able to reverse legal race neutrality
Spann 2010 (Girardeau A. - Professor of Law, Georgetown University Law Center, “Disparate
Impact,” Georgetown Public Law and Legal Theory Research Paper No. 12-179) **we do not endorse
ableist language**
The Title VII disparate impact provision embodies a textbook example of a legislative policy judgment—a judgment made by a politically accountable Congress,
whom the doctrine of separation of powers charges with the task of balancing competing constituent interests. Nevertheless, the Supreme Court chose to upset the
legislative balance that Congress struck in Title VII. The Ricci Court undermined the effectiveness of statutory disparate impact claims, and it suggested that the
recognition of such claims might even be unconstitutional. Moreover, it did this despite the fact that Congress, in the Civil Rights Act of 1991, was seeking to overturn
precisely the sorts of restrictive Title VII decisions that the Supreme Court had issued in the past—and that it has now issued again in Ricci.86 In its effort to
eviscerate Title VII disparate impact claims, therefore, the Roberts Supreme Court has exceeded the legitimate scope of its judicial power. It has usurped legislative
policymaking power by overriding majoritarian political remedies directed at entrenched modes of racial discrimination. That usurpation is particularly unfortunate
because the disparate impact remedies that the Court has chosen to neutralize offer the most realistic
hope of ever achieving a meaningful level of racial equality in the United States.87 III. PRECOMMITMENT Postracial claims notwithstanding, it should now be apparent that racial discrimination is a persistent feature of United
States culture. The fact that racial minorities remain underrepresented in the allocation of societal benefits
and overrepresented in the allocation of societal burdens illustrates that the inclination to favor the
interests of whites over the interests of racial minorities is so deeply embedded in the culture that it cannot
be eradicated through mere voluntary efforts to avoid discrimination. Even a sincere commitment to the principle of racial
equality will be insufficient to end those forms of subtle and unconscious “societal discrimination” that have become a constitutive feature of the culture.88
Accordingly, the
most realistic hope that United States culture has for ever achieving genuine racial
equality lies in its willingness to adopt a precommitment strategy that will force its behavior to
approximate the behavior of a culture that has somehow managed to transcend its discriminatory racial
attitudes. Precommitment strategies are commonly used to increase one’s fidelity to a desired course of action by eliminating options that are inconsistent with
that course of action. Burning your bridges behind you before going into battle is a classic precommitment strategy that is designed to preclude the option of retreat.
Similarly, adopting a constitution that supersedes ordinary law is a classic precommitment strategy that is designed to preclude the option of unprincipled political
actions that might seem compelling in the heat of the moment.89 Recognition
of disparate impact as a cognizable form of racial
discrimination also constitutes a sensible precommitment strategy. Although our racial biases and predispositions may not permit
us to allocate societal resources in a racially nondiscriminatory manner, we can nevertheless force ourselves to approximate the resource
allocations that would exist in a culture that was capable of authentic racial equality. But such a precommitment to
racial equality is precisely what the Supreme Court now seems intent on preventing. A. EMBEDDED INEQUALITY Speaking of United States dependence on
foreign energy sources in his 2006 State of the Union address, former President George W. Bush stated that “America is addicted to oil.”90 Even though we know that
our voracious appetite for energy leaves us vulnerable to harms ranging from economic hardship, to domestic environmental threats, to foreign political instability, we
still seem unable to curb our oil consumption in any meaningful way. Even though we know better, we cannot seem to control our behavior. That is what it means to
be addicted. Likewise, the
United States is addicted to racial discrimination. Even though we know that treating
racial minorities as inferior to whites is inconsistent with the moral, ethical, and legal theories of equality
to which we have long subscribed, the benefits to the white majority of continued discrimination against racial
minorities are apparently too compelling for the culture to resist. From the seizure of Indian lands, to slavery, to official
segregation, to wartime hysteria, to de facto segregation, to the invalidation of affirmative action,91 and most recently to the resegregation of public schools,92
white majoritarian United States culture has been committed to the subordination of racial minority
interests in pervasive and persistent ways. That is a form of white supremacy. And our addiction to it is an addiction from
which we appear no more able to wean ourselves than we have been able to wean ourselves from our addiction to foreign oil. The belief that white interests are more
important than racial minority interests is simply a constitutive element of United States culture. One of the things that it means to be an American is to have
internalized, at some very fundamental level, the realization that it is permissible to sacrifice minority interests for the benefit of whites. And that realization is often
both deep and unconscious in nature.93 That is why we tolerate the dramatic discrepancies in the allocation of societal resources that continue to exist between whites
and racial minorities. Justice Ginsburg has emphasized that conscious
and unconscious biases have caused large racial
disparities to continue to exist in unemployment, poverty, access to health care, and access to education.94
Moreover, minorities continue to suffer discrimination in employment, real estate markets, and consumer transactions.95 Minorities are also statistically discriminated
against in matters as diverse as retail car negotiations, kidney transplants, and bail setting.96 Recent social cognition research using the Implicit Association Test to
measure unconscious racial prejudice has demonstrated that most of us remain influenced by vast amounts of unconscious prejudice.97 And other recent research has
indicated that our culture transmits subtle racial stratification messages so successfully that even young children quickly learn to internalize the culture’s commitment
to minority inferiority, despite the efforts of their parents to instill in them values of colorblind race neutrality.98 Subtle forms of voting discrimination against racial
minorities remain serious enough that Congress recently, and overwhelmingly, reauthorized the Voting Rights Act of 1965—even though the Roberts Court has now
threatened to hold the Act unconstitutional.99 And, of course, residential housing segregation continues to exist in the United States at such an alarming rate that it has
been referred to as “American Apartheid.”100 The advantages and sense of natural entitlement entailed in being white in the United States remain so strong that
Cheryl Harris has characterized whiteness as a property right.101 Commentators have even suggested that the surprising vitriol that has accompanied conservative
assaults on President Obama’s undeniably moderate health care and other economic programs—as well as the personal attacks on President Obama himself—are
motivated at least in part by lingering racial animosity emanating from the intolerable idea of having a black person serve as President of the United States.102 Even
racial minorities themselves have at times kept a low profile in the health care debate for fear that popular recognition of the degree to which health care reform would
benefit minorities might increase the chance that reform proposals would be defeated.103 If you are white, and you have any lingering doubts about the existence of
embedded racial inequalities in the culture, simply ask yourself whether you would mind waking up tomorrow morning as a member of a racial minority group. If the
culture has truly freed itself from the influence of embedded racial inequalities, you should be largely indifferent about the race that you will become overnight. But I
suspect that most whites are not indifferent. Indeed, one informal survey showed that white college students thought that they would be entitled to $1 million in
damages per year if they were suddenly transformed from white into black.104 The Supreme Court has recognized the existence of the subtle and often unconscious
forms of pervasive racial discrimination that continue to exist in the culture, referring to them as “societal discrimination.”105 But rather than make any effort to
remedy those pervasive forms of discrimination, the affirmative action decisions handed down by the Court’s conservative bloc have instead held that such societal
discrimination is simply beyond the reach of permissible race-conscious remedies.106 Moreover, the Court has held that voluntary efforts by the white majority to
eliminate societal discrimination through the use of such remedies are themselves unconstitutional denials of the equal protection rights of whites.107 This is
significant because race-conscious
remedies often provide the only realistic method of neutralizing the effects of
entrenched past discrimination.108 Nevertheless, the Court has limited the use of race-conscious remedies to identifiable acts of past discrimination
for which the defendant, rather than some societal norm, is responsible.109 As a corollary, it has also prohibited the use of quotas or numerical guidelines to promote
racial balance.110 Stated differently,
the Court has permitted remedies for the identifiable acts of discrimination that
now cause marginal problems, but it has prohibited remedies for the embedded inequalities that cause the
major problem of keeping racial minorities in a subordinate position through the modern version of white
supremacy. Stated even more starkly, the Supreme Court has read the Constitution to protect, rather than prohibit,
subtle and pervasive forms of societal discrimination. The power of embedded societal discrimination—and the Supreme Court’s own
implication in the perpetuation of that discrimination—is illustrated by the Ricci case itself. The Ricci Court required New Haven to utilize the racially disparate
results of a standardized firefighter promotion exam that had never been validated to establish the exam’s job-related business necessity.111 Moreover, it did so even
though alternatives existed that were more job related, and had less disparate impact, than the standardized test.112 The Court knew only two things about the
firefighter promotion exam that it required the city to use. It knew that the validity of the exam had been vigorously contested in the record, and it knew that whites
typically outperformed racial minorities on such standardized tests.113 Nevertheless, the Court still chose to adopt performance on the exam as a baseline for
promotion, any deviation from which would be viewed as racial discrimination against whites.114 The Court never explained why it chose to accord such dispositive
deference to an exam whose validity was disputed, if not thoroughly discredited. But I have my suspicions. The reason that the Ricci Court displayed such
unquestioning deference to the standardized promotion exam is precisely because whites outperform minorities on standardized tests. I am not suggesting that the
Court conspiratorially chose to utilize an invalid selection criterion in order to favor white firefighters over minority firefighters. I am suggesting something much
more troubling. I am suggesting that—despite a mass of contrary evidence—the Court actually believed the standardized test to be valid because the results of that test
corresponded to the racially-correlated expectations that the culture had taught the Justices equate with merit. Because whites outperformed minorities on the exam,
the exam must have been measuring qualities that were relevant to merit-based promotions. Therefore, any decision not to certify the results of that exam must have
been rooted in a desire to abandon merit in favor of unwarranted racial affirmative action. As a structural matter, the belief that whites are better than racial minorities
is so deeply embedded in our unstated cultural expectations that the belief can exert influence in ways that do not even rise to the level of conscious awareness. This
insight constitutes one of the core tenets of Critical Race Theory.115 If racial minorities who were not themselves the products of white acculturation had written the
New Haven firefighters exam, I suspect that racial minorities would have outperformed whites. Minority firefighters would have found it easier than white firefighters
to understand and relate to the subtle linguistic cues and cultural values that necessarily would have been reflected in the exam. However, similar cultural biases
undoubtedly made it easier for white firefighters than minority firefighters to understand and relate to the subtle linguistic cues and cultural values that were
necessarily reflected in the firefighters exam that New Haven actually administered. One might be tempted to argue that there is no reason to believe that an exam
written by racial minorities, on which racial minorities outperformed whites, should be viewed as a valid test of job-related skills—let alone a test that should be
dispositive in making firefighter promotions. But that is the point. There is also no reason to believe that an exam written by whites, on which whites outperformed
racial minorities, should be viewed as a valid test of job-related skills—let alone a test that should be dispositive in making firefighter promotions. The only reason
that the Ricci Court was willing to disregard conflicting evidence, and view the non-validated New Haven exam as establishing the appropriate baseline for firefighter
promotions, is that whites performed in the way that the Court expected. If racial minorities had outperformed whites in the face of conflicting evidence concerning
the exam’s validity, the Court would almost certainly have viewed the exam results as suspect. Racial expectations are so firmly embedded in United States culture
that reversing the races would have been dispositive. And white
privilege is so firmly embedded that ignoring a resource
allocation scheme that has historically favored whites now constitutes an act of racial discrimination
against whites. Ricci is instructive for one additional reason. Even when the political branches of government achieve some success in resisting the
constitutive influence of race in contemporary culture—as Congress arguably did when it adopted the disparate impact provision of Title VII—the interests of racial
the Supreme Court retains the last clear chance to
ensure that white interests can ultimately prevail—a function that the Court has historically been very
adept at performing.116 The Court can always invalidate representative branch actions on constitutional grounds, as it often does in racial affirmative
minorities may still end up being overridden by the interests of whites. That is because
action cases.117 Or it can threaten invalidation in the process of imposing a narrow construction on representative branch actions, as it did in Ricci.118 Indeed, one of
the interesting features of separation of powers doctrine is that there always seems to be at least one branch of government that can ensure the protection of white
majority interests when the need arises. Accordingly,
some sort of precommitment strategy would seem to offer the
most realistic hope of ever escaping our cultural inclination to engage in societal discrimination.
And the recognition of disparate impact claims may offer one of the most promising
precommitment strategies that are available. B. APPROXIMATE EQUALITY The goal of race neutrality is
realistically unattainable in a culture where race is as salient as it has always been in the United States. Race is
too deeply embedded in our unconscious motivations simply to be rendered irrelevant by conscious
efforts to adhere to a race-neutral intent in the way that we allocate resources. Instead, what passes for colorblind race
neutrality is typically just a camouflaged effort to prolong the racial status quo, under which benefits are
disproportionately allocated to whites and burdens are disproportionately allocated to racial minorities.
Regardless of the degree of sincerity that we bring to the mission, history—and our current maldistribution of resources—indicate that we will never be
able to achieve meaningful racial equality simply through an act of will. We do, however, have it within our power to
precommit ourselves to constraints on our collective behavior that will enable us to approximate the equality in resource allocation that our embedded racial attitudes
cognitive dissonance theory
predicts that by forcing our behavior to correspond to our aspirational equality values, our embedded
racial attitudes may ultimately evolve to conform to our behavior as well.119 In a truly race neutral society,
resources would be allocated in a way that reflected the racial balance of the society as a whole. Whites
and racial minorities would share the benefits and burdens of society in a way that reflected their
respective percentages of the population. Occupations such as corporate executive, domestic worker, and farm laborer would not be
apparently preclude us from achieving through mere conscious efforts to suppress our discriminatory impulses. In fact,
stereotyped by the racial correlates of their practitioners. Election to Congress and the White House would not overwhelmingly be bestowed on the members of a
single race. And wealth, education, and social status would just as likely be found in one racial group as in another. Individual differences in merit, talent, or aptitude
would continue to exist, but there is no reason to suspect that those differences would in any way correlate with the race of the individuals in whom they were
observed. Indeed, such a suspicion would necessarily rest on a belief in inherent racial attributes that would, of course, contradict the aspirational starting assumption
of race neutrality on which this thought experiment is based. Such
a vision is presently too utopian to be realistically imagined. But it does
serve to remind us that a culture in which there was genuine racial equality would look very different
from the culture in which we presently reside.120 Although it is difficult to see how we could ever transform ourselves into a culture from
which racial discrimination had finally been eradicated, it is relatively easy to see how we could begin to approximate the
allocation of resources that such a culture would contain. The disparate impact provision of Title VII constitutes a promising
precommitment strategy that would hopefully help us achieve more racial equality than our embedded racial habits and attitudes would allow if left to their own
devices. By
explicitly reaffirming the value of a disparate impact provision in Title VII, Congress apparently
appreciated the importance of adopting an antidiscrimination strategy that focused on statistical effects
rather than on mere invidious intent.121 Congress apparently recognized that this focus on disparate impact
was a necessary step in its effort to displace the continuing effects of entrenched white advantage in
employment. And even the then-conservative Burger Supreme Court recognized this when it implied the existence of a disparate impact provision in
Griggs.122 The fact that subsequent Supreme Courts have chosen to back away from disparate impact under the
Constitution, 123 and now under Title VII,124 does not mean that the precommitment strategy adopted by Congress has
ceased to be a good strategy. On the contrary, it may show that the strategy is so good that the Court feared it
would produce more racial equality than the conservative bloc was willing to bear.125 Precommiting
ourselves to the recognition of disparate impact claims would have at least three distinct equality benefits.
First, it would promote a more racially balanced allocation of societal resources. Second, it would advance what
Richard Primus has emphasized is a second-order concern with the expressive function of antidiscrimination law by
prompting us to adopt a more mature understanding of the equal protection principle.126 Third, it would
apply to the problem of racial discrimination the idea of “asymmetric precommitment” that Richard Lazarus has
applied to the problem of climate change in the context of environmental law.127 These three benefits might then remind the Supreme Court
that it could use disparate impact theory to approximate genuine equality in much the same way that it arguably uses
representation-reinforcement theory to approximate genuine democracy. The recognition of disparate impact claims would redistribute societal resources in a way that
is racially more equitable. For example, under the facts of Ricci, recognition of disparate impact considerations would have permitted a significant number of
firefighter promotions to go to racial minorities, whereas the Court’s rejection of disparate impact considerations meant that the promotions went overwhelmingly to
whites.128 Although
the explicit white supremacy and de jure discrimination that characterized the eras of slavery and Jim Crow
now have been reduced,129 the facially neutral discriminations that are an everyday product of
our normal cultural practices still have a racially disparate impact that remains potent and persistent.130
Accordingly, it is difficult to see how the habit of white privilege —which has been solidified by a long and insistent history of racial
discrimination—can ever be reversed without attacking the problem of disparate impact directly. A
precommitment to disparate effects will help override the allocative discrimination that has been
perpetuated by our current focus on discriminatory intent.
segregation may
However, even
if Washington v. Davis were overruled—and the Title VII disparate impact cause of action
were applied more generally to all discrimination cases, rather than merely to cases involving employment discrimination—
allocative equality would not necessarily ensue. As Ricci itself illustrates, ample doctrinal means are available
for the perpetuation of allocative inequality by a Supreme Court that is intent on blunting the thrust of a
disparate impact cause of action. Not only is the Court free to manipulate the factors of job-related
business necessity and less discriminatory alternatives, but it can always find that other competing
interests outweigh the societal interest in avoiding disparate impact.131 The Court can even manipulate
levels of generality to expand or contract the minority populations that count for purposes of assessing
disparate impact.132 Accordingly, the recognition of disparate impact claims will operate as a successful
precommitment strategy only if it is accompanied by a genuine commitment to that strategy. Richard
Primus has written an important article about the interaction between the equal protection guarantee and disparate impact standards.133
Discussing potential tensions that exist between the Title VII disparate impact provision and the Supreme Court’s recent equal protection
emphasis on the interests of whites, Primus believes it is unlikely that statutory disparate impact claims would actually
be held unconstitutional.134 However, he does perceive a danger that the constitutionality of disparate
impact claims might be secured at the cost of conceptualizing those claims in a diluted way that deprives
them of their full potential to promote racial equality.135 For Primus, the second order expressive value that can be derived
from disparate impact claims lies precisely in the ability of those claims to remind us that present allocative inequalities are the result of enduring,
hierarchical groupbased historical discriminations that cannot adequately be redressed through a conception of discrimination as an individualized
phenomenon.136 Accordingly, the dynamic interaction that can exist between equal protection and disparate impact has the potential of changing
our understanding of equal protection in a way that reveals the inadequacies of the individualized model.137 Although the cautionary message
contained in the Primus article was published six years before the Supreme Court’s decision in Ricci, the Ricci majority appears
to have adopted the type of diluted disparate impact understanding of individualized
discrimination that Primus feared.138
nevertheless
A more mature conceptual understanding of equality would, of course, pay attention to the historical persistence of our embedded cultural
attitudes and behaviors, rather than simply dismissing those attitudes and behaviors as mere reflections of societal discrimination that lie beyond
the reach of legal recognition. Richard Lazarus has suggested a way in which we can resist our normal tendency to engage in presently-appealing
behavior that, in fact, undermines our long-term objectives. Lazarus notes that the enactment, implementation, and funding of environmental
protection measures that address the problem of long-term climate change are often frustrated by the more immediate economic concerns that
special interests typically advance at various stages of the regulatory process. However, Lazarus argues that we can resist such
predictable impediments to our long-term interests by adopting what he terms “asymmetric
precommitment” strategies.139 These strategies include institutional design features that make it easier to implement future regulatory
modifications when those modifications are likely to advance our climate change objectives, but make it more difficult to implement future
modifications when they are likely to undermine those objectives. In the environmental context, such design features could include things like:
supermajority requirements, multinational agreements, legislative appropriation restrictions, targeted funding mechanisms to compete with
special interest funding, targeted canons of statutory and regulatory construction, expert consultation requirements, participatory rights for
stakeholders, and targeted time restrictions.140 In responding to the argument that precommitment strategies are undesirable because they
improperly permit policymakers in the present to bind hypothetical policymakers of the future, Lazarus argues that such precommitment in the
context of climate change actually makes it possible for hypothetical policymakers of the future to bind policymakers of the present.141 By
utilizing the Lazarus idea of asymmetric precommitment to conceptualize the phenomenon of racially
disparate impact, I believe that it is possible to capture the expressive benefits of disparate impact claims that
Primus believes can move us to a more mature understanding of the equal protection principle. As Ricci
illustrates, the primary objection to disparate impact claims that is asserted by racial minorities is that the recognition of those claims can be
viewed as entailing intentional racial discrimination against whites.142 That objection, however, rests on the view that whites and racial
minorities are similarly situated with respect to a societal resource before its allocation. As a result, taking the resource away from a white
applicant simply to prevent racially disparate impact is unfair to the white applicant, whose superior exam performance has created an entitlement
to the resource. However, analogizing the Lazarus environmental insight to the issue of race, it becomes apparent that whites and racial minorities
are not similarly situated with respect to the unallocated resource. Just as a preoccupation with immediate economic gain can obscure long-term
environmental concerns, a preoccupation with firefighter exam results can obscure the discrimination against racial minorities that is embedded in
the use of non-validated promotion exams on which whites perform better than racial minorities. Accordingly, the recognition of
disparate impact claims is not a discriminatory deviation from exam-based neutrality at all. Rather, it is an
asymmetric precommitment strategy designed to compensate for our predictable cultural inclination to
utilize selection criteria that mask an often unrecognized submission to the lure of white privilege. Just as
asymmetric environmental precommitment can permit a hypothetical future to bind an existing present, the asymmetric
precommitment of disparate impact recognition can permit a hypothetical nondiscriminatory future to
bind an existing discriminatory present. The dynamic relationship between disparate impact and equal
protection that is revealed through this understanding of asymmetric precommitment constitutes the sort
of expressive benefit that Primus believes can lead us to a more sophisticated and mature understanding
of the concept of equality. It can, for example, help us to understand that contemporary claims of postracialism do not reflect the absence of continuing discrimination, but rather constitute a modern strategy
for engaging in a continued form of racial discrimination that is the contemporary analog to old-fashioned
discrimination. If the current Supreme Court conservative bloc majority were to share this more fully developed understanding of the
relationship between disparate impact and actual equality, it would be in a position to advance, rather than frustrate, our stated aspirational effort
to achieve racial equality. It is difficult to know precisely what a nondiscriminatory society would look like. But it certainly seems sensible to
suppose that it would be free from the rampant disparate impact that continues to characterize our supposedly postracial, current society. When
the Supreme Court engages in representation reinforcement judicial review, it tries to approximate the results that would be produced by a
properly functioning democratic process that is not distorted by the influence of invidious discrimination against discrete and insular minorities.
143 The attempt to approximate the features of a hypothetical counterfactual culture can often be a perilous undertaking. But a racially balanced
allocation of significant societal resources would seem to be as constitutive of such a nondiscriminatory culture as the racially imbalanced
allocation of resources appears to be constitutive of the culture in which we now reside. The elimination of identifiable disparate
impact seems like such a modest step toward the realization of meaningful racial equality that it is
difficult to understand why a Supreme Court committed to the goal of genuine equality would ever resist
the chance to remedy disparate impact. But perhaps it is the issue of genuine commitment that is causing the problem.
Racialized violence should be prioritized – the invisible and every day should be
understood as a larger impact than the catastrophic and improbable
Omolade, 1984
Barbara “Women of Color and the Nuclear Holocaust” [Sociologist and educator Dr. Barbara Omolade received her bachelor’s degree from
Queens College, her master’s degree from Goddard College, and her PhD from the City University of New York. She has worked extensively for
women’s and activist organizations and in academia.
Military terror has been used to destroy resistance to racism, capitalism, and militarism, for the
fear of violent reprisals has taught people to feel the powerless attempt to change the world. Too
often the statistics and other information on nuclear arsenals have merely reinforced the military's power to
terrorize
people into submission or
into "doomsday" protests
against death. The question of nuclear disarmament is not a
Nuclear arsenals and nuclear power are
part of a rational and holistic system in which those in power hold power over all aspects of
world society. It is irrelevant whether they are called "mad" or "sane" by protestors and critics of the system. The fact remains that they are
psychological question or a technological question, but rather a political question
men, initiating and carrying out the dictates of a rational system of military terror. Calling them "mad" or considering them military "male
chauvinists," assures only that the responsibility of each man in the Pentagon will never be understood clearly enough to wage an effective
political struggle against it.
Nuclear disarmament and peace are political questions
requiring political solutions of
accountability and struggle around who has the power to determine the destiny of the earth. The demand for
unconditional U.S. disarmament holds that the U.S. government is responsible for its actions and should be held accountable for them. To raise
these issues effectively, the movement for nuclear
disarmament must overcome its reluctance to speak in terms
of power, of institutional racism, and imperialist military terror. The issues of nuclear disarmament and
peace have been mystified because they have been placed within a doomsday frame which separates these issues from other
ones saying, "How can we talk about struggles against racism, poverty, and exploitation when there
will be no world after they drop the bombs?" The struggles of peas cannot be separated from, not considered more
sacrosanct than, other struggles concerned with human life and change. In April, 1979, the U.S. Arms Control and Disarmament Agency released
a report on the effect of nuclear war that concludes in general nuclear war between the United States and the Soviet Union, 25
to 100 million people would be killed. THis is approximately the same number of African people who died between 1492 and 1890 as a result of
would cause
massive shortages after a nuclear war, as well as on the crops that would be lost causing massive food shortages. Of
course, for people of color the world over, starvation is already a common problem, when, for example, a
the African slave trade to the New World. The same federal report also comments on the destruction of urban housing that
nation's crops are grown for export rather than to feed its own people. And the housing of people of color throughout the world's urban areas is
already blighted and inhumane: families live in shacks, shanty towns, or on the streets even in the urban areas of North America, the poor may
For people of color, the world as we knew it ended centuries ago, Our
world, with its own languages, customs, and ways, ended, And we are only beginning to see with increasing clarity
that our task is to reclaim that world, stubble for it, and rebuild it in our own image. The "death culture" we live in has
convinced many to be more concerned with death rather than with life, more willing to
demonstrate for "survival at any cost" than to struggle for liberty and peace with dignity. Nuclear
live without heat or running water.
disarmament becomes a safe issue when it is not liked to the daily and historic issues of racism to the ways in which people of color
Acts of war, nuclear holocaust, and genocide have already been
declared on our jobs, our housing, our schools, our families and our lands.
continue to be murdered.
Environment
Illegal marijuana cultivation incurs a range of devastating environmental
consequences that threaten ecosystem collapse, species extinction, and toxic water –
only federal legalization permits essential federal assistance and regulation
Zuckerman 13 (Seth, M.S. Energy and Resources from Cal, adjunct lecturer @ Brown, “Is Pot-Growing
Bad for the Environment?” October 31, 2013)
http://www.thenation.com/article/176955/pot-growing-bad-environment?page=full
*we do not endorse gendered language*
As cannabis production has ramped up in Northern California to meet the demand for medical and black-market marijuana, the
ecological impacts of its cultivation have ballooned. From shrunken, muddy streams to rivers choked with
algae and wild lands tainted with chemical poisons, large-scale cannabis agriculture is emerging as a
significant threat to the victories that have been won in the region to protect wilderness, keep toxic
chemicals out of the environment, and rebuild salmon runs that had once provided the backbone of a
coast-wide fishing industry.¶ River advocate Scott Greacen has spent most of his career fighting dams and the timber industry, but now
he’s widened his focus to include the costs of reckless marijuana growing. Last year was a time of region-wide rebound for threatened salmon
runs, but one of his colleagues walked his neighborhood creek and sent a downbeat report that only a few spawning fish had returned. Even more
alarming was the condition of the creek bed: coated with silt and mud, a sign that the water quality in this stream was going downhill.¶ “The
problem with the weed industry is that its impacts are severe, it’s not effectively regulated, and it’s
growing so rapidly,” says Greacen, executive director of Friends of the Eel River, which runs through the heart of the marijuana belt.¶
That lack of regulation sets marijuana’s impacts apart from those that stem from legal farming or logging,
yet the 76-year-old federal prohibition on cannabis has thwarted attempts to hold its production to any
kind of environmental standard. As a result, the ecological impact of an ounce of pot varies tremendously, depending on whether it
was produced by squatters in national forests, hydroponic operators in homes and warehouses, industrial-scale operations on private land, or
conscientious mom-and-pop farmers. Consumers could exert market power through their choices, if only they had
a
reliable, widely accepted certification program, like the ones that guarantee the integrity of organic
agriculture. But thanks to the prohibition on pot, no such certification program exists for cannabis
products.¶ To understand how raising some dried flowers—the prized part of the cannabis plant—can damage the local ecosystem, you first
have to grasp the skyrocketing scale of backwoods agriculture on the redwood coast. Last fall, Scott Bauer of the California Department of Fish
and Wildlife turned a mapping crew loose on satellite photos of two adjoining creeks. In the Staten Island–sized area that drains into those
streams, his team identified more than 1,000 cannabis farms, estimated to produce some 40,000 small-tree-sized plants annually. Bauer holds up
the maps, where each greenhouse is marked in blue and each outdoor marijuana garden in red, with dots that correspond to the size of the
operation. It looks like the landscape has a severe case of Technicolor acne.¶ “In the last couple of years, the increase has been exponential,”
Bauer says. “On the screen, you can toggle back and forth between the 2010 aerial photo and the one from 2012. Where there had been one or
two sites, now there are ten.Ӧ Each of those sites represents industrial development in a mostly wild landscape, with the hilly terrain flattened and
cleared. “When someone shaves off a mountaintop and sets a facility on it,” Bauer says, “that’s never
changing. The topsoil is gone.” The displaced soil is then spread by bulldozer to build up a larger flat pad
for greenhouses and other farm buildings. But heavy winter rains wash some of the soil into streams, Bauer
explains, where it sullies the salmon’s spawning gravels and fills in the pools where salmon fry spend the
summer. Ironically, these are the very impacts that resulted from the worst logging practices of the last
century.¶ “We got logging to the point that the rules are pretty tight,” Bauer says, “and now there’s this whole
new industry where nobody has any idea what they’re doing. You see guys building roads who have
never even used a Cat [Caterpillar tractor]. We’re going backwards.”¶ Then there’s irrigation. A hefty cannabis plant
needs several gallons of water per day in the rainless summer growing season, which doesn’t sound like
much until you multiply it by thousands of plants and consider that many of the streams in the area
naturally dwindle each August and September. In the summer of 2012, the two creeks that Bauer’s team mapped got so low that
they turned into a series of disconnected pools with no water flowing between them, trapping the young
fish in shrinking ponds. “It’s a serious issue for the coho salmon,” Bauer says. “How is this species going to
recover if there’s no water?”¶ The effects extend beyond salmon. During several law enforcement raids last year,
Bauer surveyed the creeks supplying marijuana farms to document the environmental violations occurring there. Each
time, he says, he found a sensitive salamander species above the grower’s water intakes, but none below
them, where the irrigation pipes had left little water in the creek. On one of these raids, he chastised the grower, who was
camped out onsite and hailed from the East Coast, new to the four- to six-month dry season that comes with California’s Mediterranean climate.
“I told him, ‘You’re taking most of the flow, man,’ ” Bauer recalls. “’It’s just a little tiny creek, and you’ve got three other growers downstream.
If you’re all taking 20 or 30 percent, pretty soon there’s nothing left for the fish.’ So he says, ‘I didn’t think about that.’ ”¶ While some growers
raise their pot organically, many do not. “Once you get to a certain scale, it’s really hard to operate in a sustainable
way,” Greacen says. “Among other things, you’ve got a monoculture, and monocultures invite pests.” Spider mites turn
out to be a particular challenge for greenhouse growers. Tony Silvaggio, a lecturer at Humboldt State University and a scholar at the campus’s
year-old Humboldt Institute for Interdisciplinary Marijuana Research, found that potent poisons such as Avid and Floramite are
sold in small vials under the counter at grower supply stores, in defiance of a state law that requires they
be sold only to holders of a pesticide applicator’s license. Nor are just the workers at risk: the miticides have been
tested for use on decorative plants, but not for their impacts if smoked. Otherwise ecologically minded
growers can be driven to spray with commercial pesticides, Silvaggio has found in his research. “After you’ve worked for
months, if you have an outbreak of mites in your last few weeks when the buds are going, you’ve got to do something—otherwise you lose
everything,” he says.¶ Outdoor growers face another threat: rats, which are drawn to the aromatic, sticky foliage of the cannabis plant. Raids
at
growing sites typically find packages of the long-acting rodent poison warfarin, which has begun making
its way up the food chain to predators such as the rare, weasel-like fisher. A study last year in the online scientific
journal PLOS One found that more than 70 percent of fishers have rat poison in their bloodstream, and attributed four
fisher deaths to internal bleeding triggered by the poison they absorbed through their prey. Deep in the back-country, Silvaggio says, growers
shoot or poison bears to keep them from raiding their encampments.¶ The final blow to environmental health from outdoor growing comes from
fertilizers. Growers dump their used potting soil, enriched with unabsorbed fertilizers, in places where it
washes into nearby streams and is suspected of triggering blooms of toxic algae. The deaths of four dogs on Eel
River tributaries have been linked to the algae, which the dogs ingest after swimming in the river and then licking their fur.¶ The cannabis
industry—or what Silvaggio calls the “marijuana-industrial complex”—has been building toward this collision with the environment ever since
California voters approved Proposition 215 in 1996, legalizing the medicinal use of marijuana under state law. Seven years later, the legislature
passed Senate Bill 420, which allows patients growing pot with a doctor’s blessing to form collectives and sell their herbal remedy to fellow
patients. Thus were born the storefront dispensaries, which grew so common that they came to outnumber Starbucks outlets in Los Angeles.¶
From the growers’ point of view, a 100-plant operation no longer had to be hidden, because its existence couldn’t be presumed illegal under state
law. So most growers stopped hiding their plants in discreet back-country clearings or buried shipping containers and instead put them out in the
open. As large grows became less risky, they proliferated—and so did their effects on the environment. Google Earth posted satellite photos taken
in August 2012, when most outdoor pot gardens were nearing their peak. Working with Silvaggio, a graduate student identified large growing
sites in the area, and posted a Google Earth flyover tour of the region that makes it clear that the two creeks Bauer’s team studied are
representative of the situation across the region. ¶ With all of the disturbance from burgeoning backwoods marijuana gardens, it might seem that
raising cannabis indoors would be the answer. Indoor growers can tap into municipal water supplies and don’t have to clear land or build roads to
farms on hilltop hideaways. But indoor growing is responsible instead for a more insidious brand of damage: an outsize carbon footprint to power
the electric-intensive lights, fans and pumps that it takes to raise plants inside. A dining-table-size hydroponic unit yielding five one-pound crops
per year would consume as much electricity as the average US home, according to a 2012 paper in the peer-reviewed journal Energy Policy.
All told, the carbon footprint of a single gram of cannabis is the same as driving seventeen miles in a Honda Civic. In addition, says Kristin
Nevedal, president of the Emerald Growers Association, “the tendency indoors is to lean toward chemical fertilizers, pesticides and fungicides to
stabilize the man-made environment, because you don’t have the natural beneficials that are found outdoors.” ¶ Nevertheless, the appeal of indoor
growing is strong, explains Sharon (not her real name), a single mother who used to raise marijuana in the sunshine but moved her operation
indoors after she split up with her husband. Under her 3,000 watts of electric light, she raises numerous smaller plants in a space the size of two
sheets of plywood, using far less physical effort than when she raised large plants outdoors. “It’s a very mommy-friendly business that provides a
dependable, year-round income,” she says. Sharon harvests small batches of marijuana year-round, which fetch a few hundred dollars more per
pound than outdoor-grown cannabis because of consumers’ preferences. Sharon’s growing operation supports her and her teenage daughter in the
rural area where she settled more than two decades ago.¶ Add up the energy used by indoor growers, from those on Sharon’s scale to the
converted warehouses favored by urban dispensaries, and the impact is significant—estimated at 3 percent of the state’s total power bill, or the
electricity consumed by 1 million homes. On a local level, indoor cannabis production is blocking climate stabilization efforts in the coastal city
of Arcata, which aimed to cut its greenhouse gas emissions by 20 percent over twelve years. But during the first half of that period, while
electricity consumption was flat or declining slightly statewide, Arcata’s household electrical use grew by 25 percent. City staff traced the
increase to more than 600 houses that were using at least triple the electricity of the average home—a level consistent with a commercial
cannabis operation.¶ The city has borne other costs, too, besides simply missing its climate goals. Inexpertly wired grow houses catch fire, and the
conversion of residential units to indoor hothouses has cut into the city’s supply of affordable housing. Last November, city voters approved a
stiff tax on jumbo electricity consumers. Now the city council is working with other Humboldt County local governments to pass a similar tax so
that growers can’t evade the fee simply by fleeing the city limits, says City Councilman Michael Winkler. “We don’t want any place in Humboldt
County to be a cheaper place to grow than any other. And since this is the Silicon Valley of marijuana growing, there are a lot of reasons why
people would want to stay here if they’re doing this,” he says. “My goal is to make it expensive enough to get large-scale marijuana growing out
of the neighborhoods.Ӧ A tax on excessive electricity use may seem like an indirect way of curbing household cannabis cultivation, but the city
had to back away from its more direct approach—a zoning ordinance—when the federal government threatened to prosecute local officials
throughout the state if they sanctioned an activity that is categorically forbidden under US law. Attempts in neighboring Mendocino County to
issue permits to outdoor growers meeting environmental and public-safety standards were foiled when federal attorneys slapped county officials
with similar warning—illustrating, yet again, the way prohibition sabotages efforts to reduce the industry’s environmental damage. ¶ Indeed,
observers cite federal cannabis prohibition as the biggest impediment to curbing the impacts of marijuana
cultivation, which continues to expand despite a decades-long federal policy of zero tolerance. “We don’t
have a set of best management practices for this industry, partly because of federal prohibition,” says
researcher Silvaggio. “If a grower comes to the county agricultural commissioner and asks, ‘What are the
practices I can use that can limit my impact?’, the county ag guy says, ‘I can’t talk to you about that
because we get federal money.’ ”¶ Faced with this dilemma, observers have proposed a spectrum of solutions. A group of patientgrowers banded together as the Tea House Collective to make their low-impact farming methods a central part of their marketing to prospective
members. “It’s about knowing your local farmer, the way ‘locavore’ is overtaking organic food,” says collective founder Charley Custer. Other
growers tout peer pressure and education as a way to goad their fellow farmers to do better, and have put together their own guide to best
practices.¶ Activist Greacen proposes tailoring the tactics to each style of cannabis farming. Cannabis farms on public land spread chemical
fertilizers and poisons into wildlife strongholds and leave behind a mess because they have no long-term stake in the property. “It’s a lot like
other kinds of rogue industry, like gold mining in Brazil,” Greacen says. “If we can’t get the feds and the cops to mobilize at the scale we need,
we may need to consider going out there with large numbers of people in the early spring, walking the most vulnerable places, and scaring these
guys out.”¶ At the other end of the spectrum, he adds, are “touchy-feely small-scale organic folks who just need some more water tanks” so they
can capture their irrigation supply in the winter, when it’s plentiful. In between, “you have this vast new industry of fairly large-scale operations
on private lands,” where progress is limited by the unyielding federal opposition to cannabis. “The fundamental thing we need is a shift in the
stance of the US Attorneys,” he says, “who have blocked efforts to regulate cultivation.” This would allow local governments to set limits on the
impact and scale of these operations, license those who agree to abide by the limits, and mow down plants at farms that refuse to get licensed. ¶
Another approach comes from state Fish and Wildlife researcher Bauer, who wants cannabis farmers to know that he doesn’t care what they’re
growing, only how they grow it. He’s willing to consider permit applications for farmers to use water from local creeks so that his agency can
regulate how much they take, at what time of year, and how to keep the pumps from sucking fish out of the streams along with the irrigation
water. “We’re not going to tell you that you can’t do your project,” Bauer says. “We’re going to tell you the right way to do it.”¶ As evidence that
his agency is truly indifferent to the legality of the growers’ trade, he recalls what happened last summer when his team searched cannabis farms
for evidence of environmental violations. “I think people were shocked because we didn’t touch a plant,” he says. “They thought we were there to
whack their crop.” Instead, the growers were simply cited for illegal water diversion and dumping sediment into the creek. One of the raided
farmers said he’d apply for a permit, Bauer says, but he never did.¶ That grower’s reluctance to come under the umbrella of
regulation illustrates one of the central problems in curbing cannabis’s impacts: marijuana growing
remains, at its roots, an underground enterprise practiced with an outlaw mind-set. Even though cannabis
cultivation has flourished under the ambiguous auspices of California’s medical marijuana laws, the
people who are best placed to serve as watchdogs over environmental abuses in their remote areas still
feel bound by a code of silence to protect each other from the law.¶ Sharon is one such person—and it isn’t because
she’s happy with the growth of the marijuana business. The relatively large operations in her rural valley have brought noisy generators to the
hills where she used to take quiet walks. “There’s a buzz of industry now in my neighborhood,” she laments. Even though her neighbors raise
their cannabis under natural light, they rely on generators to power the fans ventilating their greenhouses and to supplement the natural light.
Water has become a point of contention as well in late summer, when outdoor plants are at their thirstiest. Sharon shares a water supply with the
adjoining properties, which has run dry repeatedly as a nearby family has scaled up its cannabis growing. When that happens, the handful of
households who depend on that system have to wait until the creek gradually replenishes their tanks before they enjoy the convenience of running
water again. But even so, Sharon couldn’t imagine asking a government agency to intercede if her neighbors’ water use exceeded legal limits.
“The taboo is deeply embedded in me,” she says. “I would be an N-A-R-C, and they would be justifiably angry with me.”¶ These attitudes die
hard, and they are rising to the surface as Humboldt County considers a local ordinance requiring cannabis growers to register with the county
and meet minimal environmental standards or risk being deemed a nuisance. But a hearing on the ordinance drew a skeptical public.
“Registration sounds to me like ‘Come and turn yourself in,’ ” Bonnie Blackberry of the Civil Liberties Monitoring Project told the county
supervisors last month. “It seems like that’s asking an awful lot, and I’m not sure you’re going to get a lot of people who will do that.”¶ The
cannabis boom shows no signs of slowing down. Its growth heightens the challenge of bringing the
industry into the bright sunshine of environmental protection—not to mention occupational safety and
health, farm labor, and payroll and income-tax laws. But that is likely to prove an impossible task so long
as the message from Washington is that the right scale for cannabis farming is no farming at all.
Specifically this precedent leads to massive change in environmental justice
litigation
Owen (L.M. Environmental Law, Golden Gate University School of law, 1999; J.D., Oakland College of Law,
1998) 2k
(Kenneth,Environmental Justice Enforcement Requires Reassessment Under the Equal Protection Clause, Title VI
of the Civil Rights Act, and Environmental Statutes, 30 Golden Gate U. L. Rev.)
The concept of "environmental justice" requires "the fair treatment of all races, cultures, incomes arid
educational levels with respect to the development, implementation and enforce- ment of environmental laws,
regulations and policies," with "fair treatment 'implying' that no subgroup of people should be forced to
shoulder a disproportionate share of the negative en vironmental impacts of pollution or environmental hazards
due to lack of political or economic strength.,,2 The few reported federal cases that have alleged discrimination
in environ- mental justice siting situations under the Equal Protection Clause of the Fourteenth Amendment
have been unsuccessful because plaintiffs have been unable to prove intentional or 3
purposeful
discrimination. Communities of color burdened by environmental hazards then sought judicial relief under
Title VI, section 601, of the Civil Rights Act of 1964" Again, how- ever, the courts required plaintiffs to prove
purposeful discrimination.
This requirement has proven to be a formidable barrier to successful environmental litigation. Although the
Supreme Court has yet to rule on whether a private cause of action can proceed under the regulations adopted
pursuant to Title VI, 6
Section 602, which say that minority plaintiffs needed only to 7
prove disparate
impact to prevail, the administrative com- plaints filed under the regulations have been unsuccessful.S Even
lawsuits filed under other federal statutes, such as the Clean Water Act, have become more difficult because
the Su- preme Court has held that plaintiffs, including minority com- munities, cannot assert standing under the
environmental
statutes for wholly past violations. Communities of color will thus continue to suffer from
environmental injustice until advocates can overcome the barriers to proving intentional dis- crimination.
Disparate impact is the Achilles heel of the environmental justice movements
Faerstein (J.D. Candidate, 2005, University of Pennsylvania; B.A., 2001, University of Pennsylvania) 4
(Brian, RESURRECTING EQUAL PROTECTION CHALLENGES TO ENVIRONMENTAL INEQUITY: A
DELIBERATELY INDIFFERENT OPTIMISTIC APPROACH, 7 U. Pa. J. Const. L. 561, November, 2004)
The environmental justice movement gradually developed as it became clear that a large number of minority
communities were being deprived of the equal protection of the law. However, the passive nature of the
discriminatory activity - as opposed to active lawmaking - has been the Achilles heel of the litigation side of
the movement. Overburdened communities and civil rights advocates have been unable to prove racial animus
motivated a particular industrial siting decision, and thus have failed to clear the intentional discrimination
hurdle.
After initial failures using the Equal Protection Clause as a legal basis for lawsuits, environmental justice
activists turned to other legal strategies, such as using the implementing regulations of Title VI of the Civil
Rights Act of 1964, to circumvent this seemingly closed door. [*589] However, these efforts proved fruitless
as the Supreme Court barred the use of such regulations for private causes of action. The environmental justice
movement once again finds itself back to where it started: challengers need to prove that a state environmental
protection agency intentionally discriminated against their community when it issued an operating permit to an
industrial facility.
However, the development of the movement, and the growing awareness on a national scale of the disparate
impact of environmental hazards since the initial equal protection challenges, provide some hope for the future
of legal challenges. The EPA's disparate impact regulations, enacted pursuant to Title VI, put state agencies
receiving federal funding on notice that they cannot site industrial facilities in already overburdened minority
communities. Further, the EPA's Draft Guidances provide the states with a loose blueprint of how they should
construct programs to preclude violating the regulations. Following these guidances is not mandatory upon the
states; however, as they individually develop protocols to assess a permitting decision's impact on a
community, they will become more legally accountable for ignoring their self-mandated procedural
obligations.
Environmental justice success is key to stop the offloading of risk onto marginalized
communities – the US creates zones of sacrifice where toxic waste and radiation
continue a legacy of white supremacy and racism
Bullard and Johnson 2k (Robert D. Bullard – the Dean of the Barbara Jordan-Mickey Leland School of Public Affairs at Texas
Southern University in Houston, Texas, Ph.D. degree from Iowa State University. author of seventeen books that address sustainable
development, environmental racism, urban land use, industrial facility siting, community reinvestment, housing, transportation, climate justice,
emergency response, smart growth, and regional equity; Glenn S. Johnson - Associate Dean, Research and Graduate Studies Ph.D., University of
Tennessee – Knoxville; “Environmental Justice: Grassroots Activism and Its Impact on Public Policy Decision Making;” Journal of Social Issues,
Vol. 56, No. 3, 2000, p. 555-578)
The southern United States has become a “sacrifice zone” for the rest of the nation’s toxic waste (Schueler, 1992,
p. 45). A colonial mentality exists in Dixie through which local government and big business take advantage
of people who are both politically and economically powerless. The region is stuck with a unique legacy: the legacy
of slavery, Jim Crow, and White resistance to equal justice for all. This legacy has also affected race relations
and the region’s ecology. The South is characterized by “look-the-other-way environmental policies and
giveaway tax breaks” and as a place where “political bosses encourage outsiders to buy the region’s human and natural resources at bargain
prices” (Schueler, 1992, pp. 46–47). Lax enforcement of environmental regulations has left the region’s air, water, and land the most industrybefouled in the United States.
Toxic waste discharge and industrial pollution are correlated with poorer economic conditions. In 1992, the Institute for Southern Studies’ “Green
Index” ranked Louisiana 49th out of 50 states in overall environmental quality. Louisiana is not a rich state by any measure. It ranks 45th in the
nation in spending on elemen- tary and secondary education, for example. Ascension Parish typifies the toxic “sacrifice zone” model. In two
parish towns of Geismar and St. Gabriel, 18 petrochemical plants are crammed into a 9.5-square-mile area. In Geismar,
Borden Chemicals has released harmful chemi- cals into the environment that are health hazardous to the
local residents, including ethylene dichloride, vinyl chloride monomer, hydrogen chloride, and hydrochloric acid (Barlett & Steele, 1998, p.
72).
Borden Chemicals has a long track record of contaminating the air, land, and water in Geismar. In March 1997,
the company paid a fine of $3.5 million—the single largest in Louisiana history—for storing hazardous waste, sludges, and
solid wastes illegally; failing to install containment systems; burning hazardous waste without a permit; neglecting to
report the release of hazardous chemicals into the air; contaminating groundwater beneath the plant site
(thereby threatening an aqui- fer that provides drinking water for residents of Louisiana and Texas); and
ship- ping toxic waste laced with mercury to South Africa without notifying the EPA, as required by law (Barlett
& Steele, 1998).
Louisiana could actually improve its general welfare by enacting and enforc- ing regulations to protect the environment (Templet, 1995).
However, Louisiana citizens subsidize corporate welfare with their health and the environment (Barlett & Steele, 1998). A growing body of
evidence shows that environmental regula- tions do not kill jobs. On the contrary, the data indicate that “states with lower pol- lution levels and
better environmental policies generally have more jobs, better socioeconomic conditions and are more attractive to new business” (Templet,
1995, p. 37). Nevertheless, some states subsidize polluting industries in the return for a few jobs (Barlett & Steele,
1998). States argue that tax breaks help create jobs. However, the
few jobs that are created come at a high cost to Louisiana
taxpayers and the environment.
Nowhere is the polluter-welfare scenario more prevalent than in Louisiana. Corporations routinely pollute
the air, ground, and
drinking water while being sub- sidized by tax breaks from the state. The state is a leader in doling out corporate
welfare to polluters (see Table 1). In the 1990s, the state wiped off the books $3.1 billion in property taxes owed by polluting companies. The
state’s top five worst polluters received $111 million dollars over the past decade (Barlett & Steele, 1998). A breakdown of the chemical releases
and tax breaks includes • Cytec Industries (24.1 million pounds of releases/$19 million tax breaks) • IMC-Agrico Co. (12.8 million pounds/$15
million) • Rubicon, Inc. (8.4 million pounds/$20 million) • Monsanto Co. (7.7 million pounds/$45 million) • Angus Chemical Co. (6.3 million
pounds/$12 million) Not only is subsidizing polluters bad business, but it does not make environ- mental sense. For example, nearly three-fourths
of Louisiana’s population—more than 3 million people—get their drinking water from underground aquifers. Dozens of the aquifers are
threatened by contamination from polluting industries (O’Byrne & Schleifstein, 1991). The Lower Mississippi River Industrial
Corridor has over 125 companies that manufacture a range of products, including fertilizers, gasoline,
paints, and plastics. This corridor has been dubbed “Cancer Alley” by environmentalists and local
residents (Beasley, 1990a, 1990b; Bullard, 1994a; Motavalli, 1998).
This system of environmental injustice creates disposable populations and threatens
an emerging apocalypse that demands challenging short term catastrophe focus visible violence develops from subterranean structures of inequity
Nixon ‘9 [Rob, Professor of English at the University of Wisconsin-Madison, “NEOLIBERALISM, SLOW VIOLENCE, AND THE
ENVIRONMENTAL PICARESQUE”, MFS Modern Fiction Studies, Volume 55 number 3, Fall 2009,
http://sustainabilityparadox.commons.gc.cuny.edu/files/2010/09/Nixon-Neoliberalism2.pdf]
The picaresque proves uncannily effective at dramatizing another critical dimension to the environmentalism of the urban poor—their relationship to time. Like the picaro, the
environmentally embattled slum dwellers are hell-bent on immediate survival, improvising from day to day, from hour to hour.
Their temporal element is "now o'clock" (Animal's 185), their lives subject to the fickle tyranny of the eternal today. Yet
collectively, the city's environmentally afflicted are bound in complex ways to past and future through the
metamorphoses wrought by toxicity, the pursuit of social justice, and their collective relationship to
apocalyptic time. The environmental picaresque of Animal's People pivots on two apocalypses: the horrors of "that night" (1) when the interminable narrative of poisoning began
and the certainty that, over the long haul, as the activist Zafar insists, the poor possess "the power of zero" (214). 18 Global geopolitics may, in the short term, be skewed against
them, but time is on their side: the Kampani has everything to fear from those with nothing to lose . Animal insists as much in the novel's closing
lines: "All things pass, but the poor remain. We are the people of the Apokalis. Tomorrow there will be more of us" (366). Animal's final words echo uncannily the
end of Mike Davis's non-fictional Planet of the Slums, the most arresting socio-political account of the contemporary neoliberal shantytown world from which, implicitly, the contemporary
If the empire can deploy Orwellian technologies of repression," Davis warns, "its outcasts have the
gods of chaos on their side" (206). Reflecting on Hurricane Katrina, Michael Eric Dyson writes memorably of "the color of disaster" as
picaro emerges. "
integral to the "neoliberal neglect" that has plagued American politics for over twenty years (23). In keeping with Dyson's stance, we can
refuse the unsustainable divide between human disasters (like Bhopal and Chernobyl) and natural ones (like Katrina), dissociating
ourselves, for example, from ex-President George W. Bush's insistence that "the storm didn't discriminate and neither will the recovery effort" (qtd. In Weinberg 3). 19
Discrimination predates disaster: in failures to maintain protective structures, failures at pre-emergency hazard mitigation,
failures to maintain infrastructure, failures to organize evacuation plans for those who lack private transport, all of which make the poor
and racial minorities disproportionately vulnerable to catastrophe. As investigative Indian reporters writing for publications like the
Hindustan Times and Statesmen were quick to reveal, the Union Carbide disaster was preceded by a long history of structural neglect and a reckless flouting of elementary safety measures. 20 If
color of disaster" onto a transnational screen, his phrase can be seen—like Animal's final words—to point backward to global
crimes of environmental racism (that treat certain communities as more expendable than others) and forward as a global portent. The poor of the
world are the uncontainable color of a future that cannot be held in check. Yet there is another way to read that future, as a wager—
we project Dyson's national "
however idealistic—to those in power to embrace the project of more equitable risk distribution, within the nation and beyond. The South African writer, Njabulo Ndebele, puts this case most
We are all familiar with the global sanctity of the white body. Wherever the white body is violated in
the world, severe retributions follow somehow for the perpetrators if they are non-white, regardless of the social status of the white body. The white body is
inviolable, and that inviolability is in direct proportion to the vulnerability of the black body. This leads me to think
forcefully:
that if South African whiteness is a beneficiary of the protectiveness assured by international whiteness, it has an opportunity to write a new chapter in world history. . . . Putting itself at risk, it
will have to declare that it is home now, sharing in the vulnerability of other compatriot bodies. South African whiteness will declare that its dignity is inseparable from the dignity of black
bodies. (137) Three points are worth underscoring here. First, international whiteness provides a second shield for national whiteness, a protective dynamic that has profound consequences for
the way slow violence has unfolded across the global stage in a neoliberal age. Second, and relatedly, the internal distance between the inviolable body and the vulnerable body is widened by
being routed through international circuits of power. Third, implicit in Ndebele's racial narrative of violation and retribut ion is the kind of environmental narrative that Sinha's novel tells,
a corporate bastion of white power deploys a battery of distancing strategies (temporal, legalistic,
scientific, and euphemistic) in the long duree between the initial catastrophe and the aftermath. Through this battery
of attritional, dissociative mechanisms the transnational company strives to wear down the environmental justice
campaigns that seek compensation, remediation, and restored health and dignity. Under cover of a variety of temporal orders, the
company can hope that public memory and demands for restitution will slowly seep out of sight,
vanishing into the sands of time. 21 Yet the open-ended politics of catastrophic procrastination do not operate in isolation within the corporate realm. What of the roles
whereby
geographical,
of the state and science? If Ndebele exhorts the state to "jealously and vigorously protect all bodies within its borders and beyond," he acknowledges this has seldom been the case (137). 22 In
Khaufpur, the Chief Minister and the Minister for Poison Affairs, their palms well greased with bribes, provide local cover for the American Kampani while going through the motions of taking
seriously the concerns of exposed locals. The role of science is more complex. In Khaufpur—as in Bhopal— the transnational corporation withheld from the afflicted community details about the
chemical composition of the insecticides it was producing at the site, profoundly weakening remedial prospects by denying those exposed precise scientific information. Small wonder that, when
an American doctor arrives to open a free clinic in Khaufpur, local activists mounted a boycott, viewing her as an agent of tendentious Kampani science—science whose long-term remit is to
generate a circular narrative that will confirm the larger narrative of corporate self-exculpation or, at the very least, oil the machinery of doubt. From this skeptical perspective, the scientific
process, like the legal one, provides further temporal camouflage, ostensibly uncovering what happened while deferring and occluding any decisive, actionable narrative. Terror Time and
The
poor
inhabit
Shadow Kingdoms Khaufpur, translated from the Urdu, means "city of terror" ("The Accidental Activist").
city's
est denizens
a different terror time from the terror
time projected by the Kampani. When the slum-dwellers rise up non-violently to protest the Kampani's inaction, the Kampani, invoking the fallback international rhetoric of terrorism, demands
that the protestors be tried in the very Indian courts it has been evading. Back in America, the Kampani engages in corporate anti-terrorist exercises, staging mock abductions and executions of
an immanent and imminent
terror, faceless yet physically intimate, percolating through the penumbral time of the aftermath which is also the suspended time of the illimitable in-between.
We all inhabit multiple temporal orders that often co-exist in frictional states, shifting and sliding like tectonic plates. The
their employees by Khaufpuri "terrorists" (Animal's 283). Khaufpuris, by contrast, face a clear and present danger of an environmental kind:
predominance—and our awareness of—some temporal orders as opposed to others are shaped by where and how we live. We need to ask how directly, how forcefully a given community is
impacted by the cycles of sun and moon, by ebbing and flowing tides, by shifts in the seasons, stars, and planets, by the arrivals and departures of migratory life, and by climate change in ways
Sinha
that are cross-hatched with the migratory cycles of transnational capital, electoral cycles (local, national, and foreign), digital time, and the dictates of sweatshop time.
hints at, for
example, the unpredictable interface between digital and seasonal time when Animal discovers the "internest" on a computer (92). We can gloss his malapropism as fusing different ecologies of
exposes the uneven timelines, the multiple speeds, of environmental
terror: the initial toxic event that kills thousands instantly; the fatal fire that erupts years later when the deserted but still-polluted factory reignites;
the contaminants that continue to leach into the communal bloodstream; and the monsoon season that each year
washes abandoned chemicals into the aquifers, repoisoning wells and producing new cycles of deferred
casualties. Thus the initial air-borne terror morphs into a water-borne terror that acquires its own seasonal rhythms of heightened risk. 23 Ordinarily, rural subsistence communities—
time: the "internest" is, after all, where images go to breed. Animal's People
"ecosystem people"— are attuned (and vulnerable) to different ecologies of time from those that impact the lives of the urban poor. 24 This is not to suggest that ecosystem people possess some
romantic, timeless organic bond to the pulse of nature, but rather to acknowledge that their often precarious conditions of survival depend on different combinations of temporal awareness.
urban communities share a vulnerability to the vagaries, the haunting uncertainties, of what Ulrich
a "shadow kingdom": Threats from civilization are bringing about a kind of new "shadow kingdom," comparable
to the realm of the gods and demons in antiquity, which is hidden behind the visible world and threatens human life on their
Earth. People no longer correspond today with spirits residing in things but find themselves exposed to
"radiation," ingest "toxic levels," and are pursued into their very dreams by the anxiety of a "nuclear
holocaust" . . . Dangerous, hostile substances lie concealed behind the harmless facades. Everything must be viewed with a double gaze, and
can only be correctly understood and judged through this doubling. The world of the visible must be
investigated, relativized with respect to a second reality, only existent in thought and concealed in the world.
However, both rural and
Beck depicts as
(72) In Beck's depiction this imperceptible shadow kingdom is spatially recessed behind "harmless facades." But his spatial trope warrants a temporal gloss as well: beyond the optical façade of
immediate peril what demons lurk in the penumbral realms of the long duree? What forces distract or discourage us from maintaining the double gaze across time? And what forces—
How, in other words, do we subject
that shadow kingdom to a temporal optic that might allow us to see—and foresee—the lineaments of slow terror
behind the façade of sudden spectacle?
imaginative, scientific, and activist—can help us extend the temporal horizons of our gaze not just retrospectively but prospectively as well?
We need to question here Beck's assumption that "people no longer correspond today with spirits residing in things," that, in other words, the divine and demonic shadow kingdom "of
antiquity" has been superseded by the modern shadow kingdom of toxic and radiological hazards. This sequential narrative of threat does not adequately convey the persistent vitality of the numinous within modernity. For the majority of our planet's people (and this is something Sinha brings
to life) the two kingdoms of toxic threat and spiritual threat interpenetrate and blend, creating a hybrid world of technonuminous fears. Sinha and Carson: Leakages and Corporate Evaporations Animal's People gives focus to the environmental politics of permeation and duration. Leakages
suffuse the novel: gas leakages and category leakages, porous borders and permeable membranes, the living who are semi-dead and the dead who are living specters. 25 What, the novel asks across a variety of fronts, are the boundaries of identity? Where do identities part or merge? How
much change must an entity (an individual, a community, a corporation) undergo before it can assume the name of categorical difference, drawing a line across time? On the subject of bounded and porous identities, it is worth noting one aspect of the Union Carbide story that Sinha, for
whatever reasons, declined to enfold into his novel. In 2001, Union Carbide disappeared through that act of corporate necroma ncy known as the merger. Dow Chemical bought out Union Carbide; the name indelibly associated with disaster evaporated, further confounding the quest in Bhopal
for environmental justice, compensation, remediation, and redress. Dow Chemical deployed this nominal vanishing act, this corporate shape shifting, as a rationale for disclaiming responsibility for a disaster committed by a now-extinct corporation. 26 If, with Chernobyl, the environmental
fallout outlasted the empire responsible, with Union Carbide, the fallout outlasted the transnational company responsible. Thus Soviet imperial fracture and American corporate merger both effectively circumvented or offloaded historical culpability for the continued slow violence of delayed
effects. The evaporation of Union Carbide exemplifies the gap between the relative immobility of environmentally afflicted populations and the mobility (in time and space) afforded transnational corporations. What the extinct company leaves behind is ongoing proof of the excellent
The factory may have
been abandoned, but the invisible poisons remain dynamic, industrious, and alive—full time workers round the clock. The
durability of its products; as Animal notes sardonically, the Kampani clearly concocted "wonderful poisons . . . so good it's impossible to get rid of them, after all these years they're still doing their work" (Animal's 306).
far less resilient biota, however, express themselves primarily through the sensuality of absence: "Listen, how quiet," Animal observes as he wanders the factory grounds. "No bird song. No
summoning of ecological carnage through
negative presence—echoes "La Belle Dame sans Merci" which Rachel Carson chose as the epigraph to Silent Spring: "The sedge is wither'd from the lake, / And no birds sing."
hoppers in the grass. No bee hum. Insects can't survive here" (185). Sinha's rhetorical strategy here—his
Sinha's approach calls to mind, too, Carson's use of negative presence in the controversial "Fable for Tomorrow" that launches Silent Spring, where she evokes the plight of a devastated
community. In a once harmonious American heartland town (dubbed "Green Meadows" in an early draft) "There was a strange stillness. The birds, for example—where had they gone? . . . The
hens brooded, but no chicks hatched. . . . The apple trees were coming into bloom but no bees droned among the blossoms, so there was no pollination and there would be no fruit" (Carson 2–3).
give the absence wrought by toxicity a sensory density; in so doing they strike a complex temporal
note, inducing in us, through blended elegy and apocalypse, lamentation and premonition, a double gaze, backward in time to loss and forward to
as-yet-unrealized-threats. Through this double gaze they restage environmental time, asserting its broad
parameters against the myopic, fevered immediacy that governs the society of the catastrophe-as-spectacle.
Both writers
The blighted community Carson depicts in "A Fable for Tomorrow" did not exist in its entirety, although all the component disasters Carson fed into her composite, fictionalized portrait had
By clustering these scattered micro-disasters into a single imaginary community, she
sought to counter the dissociative thinking encouraged by the temporal and spatial dispersion of
environmental violence, acts which in isolation would pass beneath the radar of the newsworthy. Like
occurred at some point somewhere in America.
Carson, Sinha has clearly grappled with the imaginative dilemmas posed by the diffusion of slow violence across environmental time. But his response is differently inflected, given that all the
through the
mechanisms of globalization, environmental racism, and class discrimination, some afflicted communities are
afforded more visibility—and more access to remediation—than others. This discriminatory distribution of environmental visibility—
disasters he summons to mind had indeed been concentrated in a single community. The problem he tackled, moreover, was one Carson never addressed directly: how,
intranationally and transnationally—lies at the heart of Sinha's fictional endeavor. Forty-five years ago, Carson protested that the scattershot victims of "herbicides" and "pesticides" ought to be
recognized as victims of indiscriminate "biocides" instead (8). Sinha develops this idea of biocidal risk in terms redolent of Carson: one old woman, bent double by the poisons, upbraids the
Kampani lawyer thus: "you told us you were making medicine for the fields. You were making poisons to kill insects, but you killed us instead. I would like to ask, was there ever much
difference, to you?" (Animal's 306). Yet Sinha departs from Carson in representing "pesticides" as both indiscriminate and discriminatory: their killing power exceeds their targeted task of
eliminating troublesome insects, but they do discriminate in the unadvertised sense of saddling the local and global poor with the highest burden of risk. Thus, by implication, the biocidal assault
on human life is unevenly universal. Extraordinary Events, Ordinary Forgettings Looking back at Chernobyl, Hiroshima, Nagasaki, and Bhopal, Petryna laments how "many persons who have
survived these largescale technological disasters have been caught in a long-term and vicious bureaucratic cycle in which they carry the burden of proof of their physical damage while
experiencing the risk of being delegitimated in legal, welfare, and medical institutional contexts" (216). Such people, above all the illiterate poor, are thrust into a labyrinth of self-fashioning as
they seek to fit their bodily stories to the story lines that dangle hope of recognition, possibly, though elusively, even recompense. In so doing, the poor face the double challenge of invisibility
and amnesia: numerically they may constitute the majority, but they remain on the margins in terms of visibility and official memory. From an environmental perspective, this
marginality is perpetuated, in part, by what Davis terms "the dialectic of ordinary disaster," whereby a calamity is
incorporated into history and rendered forgettably ordinary precisely because the burden of risk falls
unequally on the unsheltered poor ("Los Angeles" 227). Such disasters are readily dismissed from memory and
policy planning by framing them as accidental, random, and unforeseeable acts of God, without regard for the
precautionary measures that might have prevented the catastrophe or have mitigated its effects. At stake here is the role of neoliberal globalization in exacerbating both uneven
economic development and the uneven development of official memory. What we witness is a kind of fatal bigotry
that operates through the spatializing of time, by offloading risk onto "backward" communities that
are barely visible in the official media. Contemporary global politics, then, must be recognized "as a struggle for crude, material dominance, but also (threaded
ever closer into that struggle) as a battle for the control over appearances" (Boal 31). That battle over spectacle becomes especially decisive for public memory—and for the foresight with which
public policy can motivate and execute precautionary measures—when it comes to the attritional casualties claimed, as at Bhopal, by the forces of slow violence.
Environmental injustice outweighs any impact on probability and magnitude – risk
assessment is epistemologically biased towards white male elites who discount the
severity of localized environmental hazards in destroying marginalized communities.
Verchick 96 [Robert, Assistant Professor, University of Missouri -- Kansas City School of Law. J.D.,
Harvard Law School, 1989, “IN A GREENER VOICE: FEMINIST THEORY AND
ENVIRONMENTAL JUSTICE” 19 Harv. Women's L.J. 23]
Because risk assessment is based on statistical measures of risk, policymakers view it as an accurate and
objective tool in establishing environmental standards. n275 The scientific process used to assess risk purports to focus single-mindedly on only one
feature of a potential injury: the objective probability of its occurrence. n276 Risk assessors, who consider most value judgments irrelevant in determining statistical risk, seek to banish them at
the language of risk assessment -- and of related environmental safety standards -- often
carry an air of irrebuttable precision and certainty. The EPA, for example, defines the standard acceptable level of risk under Superfund as "10<-6>" -every stage. n277 As a result,
that is, the probability that one person in a million would develop cancer due to exposure to site contamination. n278 [*76] Feminism challenges this model of scientific risk assessment on at
least three levels. First, feminism questions the assumption that scientific inquiry is value-neutral, that is, free of societal bias or prejudice. n279 Indeed, as many have pointed out, one's
perspective unavoidably influences the practice of science. n280 Western science may be infused with its own ideology, perpetuating, in the view of the ecofeminists, cycles of discrimination,
even if scientific inquiry by itself were value-neutral, environmental regulation
based on such inquiry would still contain subjective elements. Environmental regulation, like any other product of
domination, and exploitation. n281 Second,
inevitably reflects elements of subjectivity, compromise, and self-interest. The technocratic
language of regulation serves only to "mask, not eliminate, political and social considerations." n282 We have
already seen how the subjective decision to prefer white men as subjects for epidemiological study can skew risk
assessments against the interests of women and people of color. The focus of many assessments on the risk of cancer
deaths, but not, say, the risks of birth defects or miscarriages, is yet another example of how a policymaker's
subjective decision of what to look for can influence what is ultimately seen. n283 Once risk data are collected and placed in a
democracy,
statistical form, the ultimate translation of that information into rules and standards of conduct once again reflects value judgments. A safety threshold of one in a million or a preference for "best
Whose
experience? Whose judgment? Which information? These are the questions that feminism prompts, and they will be discussed shortly. Finally,
feminists would argue that questions involving the risk of death and disease should not even aspire to value
neutrality. Such decisions -- which affect not only today's generations, but those of the future -- should be
made with all related political and moral considerations plainly on the table. n284 In addition, policymakers
should look to all perspectives, especially those of society's most vulnerable members, to develop as
complete a picture of the moral issues as possible. Debates about scientific risk assessment and public values often appear as a tug of war between the
conventional technology" does not spring from the periodic table, but rather evolves from the application [*77] of human experience and judgment to scientific information.
"technicians," who would apply only value-neutral criteria to set regulatory standards, and the "public," who demand that psychological perceptions and contextual factors also be considered.
n285 Environmental justice advocates, strongly concerned with the practical experiences of threatened communities, argue convincingly for the latter position. n286 A feminist critique of the
issue, however, suggests that the debate is much richer and more complicated than a bipolar view allows. For feminists, the notion of value neutrality simply does not exist. The debate between
technicians and the public, according to feminists, is not merely a contest between science and feelings, but a broader discussion about the sets of methods, values, and attitudes to which each
group subscribes. Furthermore, feminists might argue, the parties to this discussion divide into more than two categories. Because one's world view is premised on many things, including
personal experience, one might expect that subgroups within either category might differ in significant ways from other subgroups. Therefore, feminists would anticipate a broad spectrum of
views concerning scientific risk assessment and public values. Intuitively, this makes sense. Certainly scientists disagree among themselves about the hazards of nuclear waste, ozone depletion,
and global warming. n287 Many critics have argued that scientists, despite their allegiance [*78] to rational method, are nonetheless influenced by personal and political views. n288 Similarly,
members of the public are a widely divergent group. One would not be surprised to see politicians, land developers, and blue-collar workers disagreeing about environmental standards for
Politicians and bureaucrats are two sets of the non-scientific community that affect environmental standards in fundamental ways. Their
adherence to vocal, though not always broadly representative, constituencies may lead them to disfavor less advantaged
socioeconomic groups when addressing environmental concerns. n289 In order to understand a diversity of risk perception and to see how
essentially non-scientific reasons.
attitudes and social status affect the risk assessment process, we must return to the feminist inquiry that explores the relationship between attitudes and identity. 1. The Diversity of Risk
A recent national survey, conducted by James Flynn, Paul Slovic, and C.K. Mertz, measured the risk perceptions of a group of
the health risks of
twenty-five environmental, technological, and "life-style" hazards, including such hazards as ozone depletion, chemical waste, and cigarette smoking. n291 The
Perception
1512 people that included numbers of men, women, whites, and non-whites proportional to their ratios in society. n290 Respondents answered questions about
researchers asked them to rate each hazard as posing "almost no health risk," a "slight health risk," a "moderate health risk," or a "high health risk." The researchers then analyzed [*79] the
responses to determine whether the randomly selected groups of white men, white women, non-white men, and non-white women differed in any way. The researchers found that
perceptions of risk generally differed on the lines of gender and race. Women, for instance, perceived greater risk from most hazards
than did men. n292 Furthermore, non-whites as a group perceived greater risk from most hazards than did whites. n293 Yet the most striking results appeared
when the researchers considered differences in gender and race together. They found that "white males tended to differ from
everyone else in their attitudes and perceptions -- on average, they perceived risks as much smaller and much more acceptable than did
other people." n294 Indeed, without exception, the pool of white men perceived each of the twenty-five hazards as less risky than did non-white men, white women, or
non-white women. n295 Wary that other factors associated with gender or race could be influencing their findings, the researchers later conducted several
multiple regression analyses to correct for differences in income, education, political orientation, the presence of children in the home, and age,
among others. Yet even after all corrections, "gender, race, and 'white male' [status] remained highly significant
predictors" of perceptions of risk. n296 2. Explaining the Diversity From a feminist perspective, these findings are important because they suggest that risk
assessors, politicians, and bureaucrats -- the large majority of whom are white men n297 -- may be acting on
attitudes about security and risk that women and people of color do not widely share. If this is so, white men, as
the "measurers of all things," have crafted a system of environmental protection that is biased toward their
subjective understandings of the world. n298 [*80] Flynn, Slovic, and Mertz speculate that white men's perceptions of risk may differ from those of others
because in many ways women and people of color are "more vulnerable, because they benefit less from many of [society's] technologies and
institutions, and because they have less power and control." n299 Although Flynn, Slovic, and Mertz are careful to acknowledge that they have not yet tested this
hypothesis empirically, their explanation appears consistent with the life experiences of less empowered groups and comports with previous understandings about the roles of control and risk
perception. n300 Women and people of color, for instance, are more vulnerable to environmental threat in several ways. Such groups are sometimes more biologically vulnerable than are white
People of color are more likely to live near hazardous waste sites, to breathe dirty air in urban
communities, and to be otherwise exposed to environmental harm. n302 Women, because of their traditional role as primary caretakers, are
men. n301
more likely to be aware of the vulnerabilities of their children. n303 It makes sense that such vulnerabilities would give rise to increased fear about risk. It is also very likely that women and
people of color believe they benefit less from the technical institutions that create toxic byproducts. n304 Further, people may be more likely to discount risk if they feel somehow compensated
for the activity. n305 For this reason, Americans worry relatively little about driving automobiles, an activity with enormous advantages in our large country but one that claims tens of thousands
of lives per year. The researchers' final hypothesis -- that differences in perception can be explained by the lack of "power and control" exercised by women and people of color -- suggests the
importance that such factors as voluntariness and control over risk play in shaping perceptions. [*81] Risk perception research frequently emphasizes the significance of voluntariness in
evaluating risk. Thus, a person may view water-skiing as less risky than breathing polluted air because the former is accepted voluntarily. n306 Voluntary risks are viewed as more acceptable in
part because they are products of autonomous choice. n307 A risk accepted voluntarily is also one from which a person is more likely to derive an individual benefit and one over which a person
Although
environmental risks are generally viewed as involuntary risks to a certain degree, choice plays a role in assuming risks. White men are
still more likely to exercise some degree of choice in assuming environmental risks than other groups. Communities
is more likely to retain some kind of control. n308 Some studies have found that people prefer voluntary risks to involuntary risks by a factor of 1000 to 1. n309
of color face greater difficulty in avoiding the placement of hazardous facilities in their neighborhoods
and are more likely to live in areas with polluted air and lead contamination. n310 Families of color wishing
to buy their way out of such polluted neighborhoods often find their mobility limited by housing discrimination, redlining
by banks, and residential segregation. n311 The workplace similarly presents workers exposed to toxic hazards (a disproportionate number of whom are minorities) n312 with impossible choices
between health and work, or between sterilization and demotion. n313 Just as marginalized groups have less choice in determining the degree of risk they will assume, they may feel less control
over the risks they face. "Whether or not the risk is assumed voluntarily, people have greater [*82] fear of activities with risks that appear to be outside their individual control." n314 For this
If white men are more complacent about
public risks, it is perhaps because they are more likely to have their hands on the steering wheel when such risks
are imposed. White men still control the major political and business institutions in this country. n316 They also
dominate the sciences n317 and make up the vast majority of management staff at environmental agencies. n318 Women and people of color see
this disparity and often lament their back-seat role in shaping environmental policy. n319 Thus, many people of color in the
environmental justice movement believe that environmental laws work to their disadvantage by design. n320 [*83 ] The toxic rivers of Mississippi's "Cancer
Alley," n321 the extensive poisoning of rural Indian land, n322 and the mismanaged cleanup of the weapons
manufacturing site in Hanford, Washington n323 only promote the feeling that environmental policy in the
United States sacrifices the weak for the benefit of the strong. In addition, the catastrophic potential that groups other than white men associate
with a risk may explain the perception gap between those groups and white males. Studies of risk perception show that, in general, individuals harbor particularly
great fears of catastrophe. n324 For this reason, earthquakes, terrorist bombings, and other disasters in which
high concentrations of people are killed or injured prove particularly disturbing to the lay public. Local
environmental threats involving toxic dumps, aging smelters, or poisoned wells also produce high
concentrations of localized harm that can appear catastrophic to those involved. n325 Some commentators contend that the
catastrophic potential of a risk should influence risk assessment in only minimal ways. n326 Considering
public fear of catastrophes, they argue, will irrationally lead policymakers to battle more dramatic
but statistically less threatening hazards, while accepting more harmful but more mundane
hazards. n327 [*84] At least two reasons explain why the catastrophic potential of environmental hazards must be
given weight in risk assessment. First, concentrated and localized environmental hazards do not simply
harm individuals, they erode family ties and community relationships. An onslaught of miscarriages or
birth defects in a neighborhood, for instance, will create community-wide stress that will debilitate the
neighborhood in emotional, sociological, and economic ways. n328 To ignore this communal harm is to
underestimate severely the true risk involved. n329 Second, because concentrated and localized
environmental hazards tend to be unevenly distributed on the basis of race and income level, any resulting
mass injury to a threatened population takes on profound moral character. For this reason, Native Americans often characterize the
military's poisoning of Indian land as genocide. n330 [*85] 3. Understanding Through Diversity Flynn, Slovic, and Mertz challenge the traditional,
static view of statistical risk with a richer, more vibrant image involving relationships of power, status,
and trust. n331 "In short, 'riskiness' means more to people than 'expected number of fatalities.'" n332 These findings affirm
the feminist claim that public policy must consider both logic and local experience in addressing a problem. n333
Current attempts to "re-educate" fearful communities with only risk assessments and scientific seminars are, therefore, destined to fail. n334 By the same token, even dual
approaches that combine science and experience will fall short if the appeal to experience does not
track local priorities and values. Cynthia Hamilton illustrates these points in her inspiring account of how a South Central Los Angeles community group,
reason, people often fear flying in an airplane more than driving a car, even though flying is statistically safer. n315
consisting mainly of working-class women, battled a proposed solid waste incinerator. n335 At one point, the state sent out consultants and environmental experts to put the community's fears
into perspective. The consultants first appealed to the community's practical, experience-based side, by explaining how the new incinerator would bring needed employment to the area and by
offering $ 2 million in community development. n336 But the community group found the promise of "real development" unrealist ic and the cash gift insulting. n337 When experts then turned to
quantifying the risks "scientifically" their attempts backfired again. Hamilton reports that "expert assurance that health risks associated with dioxin exposure were less than those associated with
'eating peanut butter' unleashed a flurry of dissent. All of the women, young and old, working-class and professional, had made peanut butter sandwiches for years." n338 The sandwich analogy,
even assuming its statistical validity, could not convince the women because it did not consider other valid risk factors (voluntariness, dread, and so on) and because it did not appear plausible in
the group members' experience. In the end, Hamilton explains that the superficial explanations and sarcastic responses of the male "experts" left the women even more united and convinced that
"working-class women's [*86] concerns cannot be dismissed." n339 Thus even the "science" of risk assessment, if it is to serve effectively, must include the voices of those typically excluded
from its practice. n340 4. Opening Debate and Fostering Trust If developers and government officials are ever to win the acceptance of less empowered groups, they must move beyond the one-
Society must explore "levels of power sharing and public participation in decisionmaking
that have rarely been attempted." n341 Such efforts must be pursued with the primary goal of engendering a relationship of trust among all participants; for only by
way conversation.
gaining trust can one hope to persuade. n342 The federal government has already begun implementing programs it hopes will help unite citizens against environmental injustice. President
Clinton's much publicized Executive Order 12,898, n343 for instance, declares it the goal of "each Federal agency" to make "achieving environmental justice part of its mission by identifying and
addressing . . . disproportionately high and adverse" effects that agency activities have on "minority populations and low-income populations." n344 The order directs federal agencies to develop
strategies to reduce disproportionate impacts, orders the creation of an interagency working group on environmental justice, and helps to provide minority and poor communities with access to
public information on matters relating to human health or the environment, and an opportunity for public participation. n345 Some states and municipalities have also enacted laws or initiated
commentators have also suggested ways to help promote a
more equal distribution of environmental benefits and burdens. Some call for the diversification of state and federal agencies and
programs intended to redress some forms of environmental injustice. n346 [*87] Legal
mainstream environmental groups to reflect to a greater extent the perspectives of women and people of color. n347 Others recommend reforming Superfund's community outreach mechanisms
increasing citizen participation in siting decisions. n349 Regulatory agencies could also be required to consider the distributional effects that
their actions have on women and children. Remedial proposals such as these, and many more that will follow, must ultimately be judged on the degree
n348 and
to which they acknowledge and incorporate the attitudes and experiences of less empowered people. Feminism
can propel environmental justice advocates and policymakers in the right direction by always challenging them to unmask hidden biases behind environmental law, to bring personal experience
to the fore, and to remain committed to broad and open dialogue with the community.