Let's Talk Human Rights

By Harrison R. Sorm, UDSL 3L

In the Fall of 2022, law students were introduced to Critical Race Theory and Feminist Legal Theory taught by Dr. Satang Nabaneh. During the course of the semester, they learned about the concepts and critically reflected on how to utilize these critical lenses to effect social justice through legal institutions. This series captures some students' reflections on key legal and social issues. 

How lawfare shaped the war on drugs

The war on drugs has had a lasting effect on individual rights and at-risk populations. Here, I discuss the discriminatory history behind drug laws in the United States and lay out a thesis of how harm has come to be inflicted particularly on communities of color.

The war on drugs failed to reduce substance usage and addiction, but it succeeded in rapidly growing the prison population from when the laws went into effect until today. This growth has been disproportionately made up of persons of color. 

The disproportionate impact of the war on drugs is not new. The first drug bans in the United States date back to the late 1800s. Those laws specifically targeted opium and were overwhelmingly enforced against Asian immigrants. So the phenomenon of drug-related laws targeting communities is nothing new in the U.S. 

The question is, "how can laws be manipulated to target these populations"? The answer is complex, but I look at the concept of lawfare for this post. Lawfare is the usage of various processes, both legislative and legislative-like, to achieve a group's desired outcome. While abstract, it can be boiled down to how the prevailing beliefs of those in power can manipulate the law and law enforcement to reach a desired goal. Such goals can include passing and enforcing laws in such a manner as to target and destabilize minority populations. 

Lawfare takes place at many levels of society. It requires the support of the general electorate at the most basic level, which consists in the United States of a significant proportion of white voters. Capturing the support of the largest part of the electorate makes it easier to pass laws that benefit the dominant group to the detriment to minority groups. The recent rhetoric and policies of the Trump administration showed precisely how this populist approach can be effective in getting into power while undermining inclusion in society and democracy as a whole.

Civil servants also engage in lawfare through their actions and inactions. Civil servants and, more broadly, government institutions in many cases, can exercise discretion and their efforts are often insulated from review. If they can provide a pretext, their decisions are typically upheld. This deference is embedded in the anti-discrimination jurisprudence in the U.S., which requires a two-part analysis. For a decision to be considered discriminatory, it must be shown that there was 1) discriminatory intent and 2) disproportionate impact. These requirements must be established sequentially so that without demonstrating intent, the person challenging the decision cannot move on to the second part of the analysis. The United States Supreme Court has repeatedly held that disproportionate impact alone is insufficient to uphold a challenge on discrimination grounds unless the discrimination is so blatant that it cannot be explained away (this is called the Yick Wo exception).

The concept of lawfare is relatively new in legal academia, but the practice is centuries old. It is simply manipulating the law and legal processes to reach the desired outcome of those in power. This control is the reality of our legal landscape and we should continuously critique and scrutinize our legal system. It is important to note that lawfare can be used for good or bad aims. It can perpetuate justice or injustice depending on who wields the sword.

Harrison R. Sorm grew up in Garfield Heights, Ohio, and spent his teenage years in Green, Ohio. He graduated from Green High School, then attended Kent State University, earning his Bachelor of Arts in Psychology and a Minor in pre-law. Upon graduation from the University of Dayton School of Law, Harrison intends to work as a prosecutor or public defender in criminal law.