Candace Dasanna
Between 2002 and 2020 approximately half a million noncitizens were deported from the United States for drug offenses, many of which involved only minor charges.[1] These deportations were carried out under the Immigration and Nationality Act[2] (hereinafter “the INA” or “the Act”), which mandates deportability for individuals convicted of almost any controlled substance violation. Originally enacted in 1952, the INA was amended in 1990 to include harsher restrictions for drug offenses. This change was implemented as part of the U.S.’s broader “War on Drugs,” and was intended to crack down on the importation and trafficking of illegal substances. While the U.S. deported noncitizens for drug offenses prior to the initiation of the War on Drugs in 1971, the consequences for drug offenses under the original INA were not as harsh as seen today.[3] The original version of the INA mainly reflected the government’s desire to prevent the importation, trafficking, and production of illegal substances.[4]
However, with a change in the political climate came also a change in immigration law. The so-called “War on Drugs” started with President Richard Nixon in 1971.[5] In June of that year, Nixon labelled drug abuse “America’s public enemy number one,” and declared that in order to fight this enemy it was necessary “to wage a new, all-out offensive.”[6] Newspapers in the U.S. picked up Nixon’s metaphor, and within days the U.S. was engaged in a “war on drugs.”[7] Nixon “increased federal funding for drug-control agencies and drug-treatment efforts,” and under his administration the Drug Enforcement Administration was formed in 1973.[8] His rhetoric and policies helped “push[] the focus from U.S. drug demand to international drug supply,” and “framed the war as foreign conflict which pitched Americans against murderous gangs of overseas criminals.”[9] However, the War on Drugs remained “a relatively small component of federal law-enforcement efforts” until the 1980s.[10]
Then came the Reagans. Drugs were at the forefront of the Reagan administration’s politics, broadcast by Nancy Reagan’s catchy and simplistic “Just Say No”[11] campaign and complemented by President Ronald Reagan’s “tough on crime” rhetoric.[12] President “Reagan greatly expanded the reach of the drug war and his focus on criminal punishment over treatment led to a massive increase in incarcerations for nonviolent drug offenses, from 50,000 in 1980 to 400,000 in 1997.”[13] Under his administration the Anti-Drug Abuse Act of 1986 was enacted, which “enforced severe consequences, such as felony charges for simple possession of controlled substances” and set “mandatory minimum sentencing for specific drug smuggling crimes.”[14] Reagan called for a “national crusade” against drugs, and for policies that would “treat[] drug trafficking as a threat to our national security.”[15] With his “crusade” came the perception that immigrants were bringing drugs and crime into the U.S.—a perception that has persisted despite data that show that immigrant populations are often less likely to commit crimes than the general populous,[16] and that the vast majority of individuals sentenced for drug trafficking are U.S. citizens.[17] This is a narrative that we still see today, and which “was central to President Donald Trump’s argument for a border wall.”[18]
It was in this political atmosphere that the INA was amended in 1990. President George H. W. Bush signed the Immigration Act of 1990, declaring that it met “several objectives of [his] Administration’s war on drugs and violent crime” and “improve[d] [his] Administration’s ability to secure the U.S. border—the front lines of the war on drugs.”[19] The 1990 amendment to the INA changed, among other things, the language and punishments related to drug crimes. Whereas the language in the 1952 INA mainly focused on drug production and trafficking, the 1990 Act made noncitizens deportable if “at any time after admission [they] ha[ve] been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance . . . , other than a single offense involving possession for one’s own use of 30 grams or less of marijuana . . . .”[20]
The language added to the Act in the ‘90s remains to this day. Further, “[n]ot a single immigration consequence tied to drugs has been curtailed since they were expanded under the administration of US President Ronald Reagan in 1988.”[21] And these policies have had devastating effects. Human Rights Watch and the Drug Policy Alliance estimate that between 2002 and 2020 approximately half a million noncitizens were deported for drug offenses,[22] many of which were simply for “drug use or possession.”[23] Further, “[a]mong non-citizens deported for an aggravated felony from 2007 to 2012 who had a drug conviction as their most serious crime, about a quarter (13,000) had a conviction for possession or use of a drug.”[24]
These deportations have done little to affect drug importation and use. In 2021 107,000 people died from drug overdoses—the highest number on record up to that point.[25] Two-thirds of those deaths were caused by opioids such as fentanyl,[26] which is often trafficked across the U.S.-Mexico border but which is largely not trafficked by immigrants: In 2021 the U.S. Sentencing Commission found that 86.2% of fentanyl traffickers were United States citizens[27]—compared to the 8.9% comprised of illegal immigrants.[28]
The War on Drugs and subsequent amendments to the INA have failed to achieve their goals. Instead of decreasing drug use and trafficking, they have disproportionately punished noncitizens—many of whom were convicted of minor drug offenses. Despite mounting evidence that the punitive measures adopted at the height of the War on Drugs have done little to curb the importation and use of illegal substances, the INA has remained static since the ‘90s—a vestige of failed policies that still has the power to destroy lives. The War on Drugs continues today, despite its impotency. And like any war it continues to leave wreckage and devastation in its wake.
[1] Human Rts. Watch & Drug Pol’y All., Disrupt and Vilify: The War on Immigrants Inside the US War on Drugs, Human Rts. Watch (July 15, 2024), https://www.hrw.org/report/2024/07/15/disrupt-and-vilify/war-immigrants-inside-us-war-drugs.
[2] 8 U.S.C. §§ 1101–1537.
[3] A Price Too High: Detention and Deportation of Immigrants in the US for Minor Drug Offenses, Human Rts. Watch (June 16, 2015), https://www.hrw.org/report/2015/06/16/price-too-high/us-families-torn-apart-deportations-drug-offenses [hereinafter A Price Too High].
[4] The Act made deportable any noncitizen “who has been convicted of a violation of any law or regulation relating to the illicit traffic in narcotic drugs, or who has been convicted of a violation of any law or regulation governing or controlling the taxing, manufacture, production, compounding, transportation, sale, exchange, dispensing, giving away, importation, exportation, or the possession for the purpose of the manufacture, production, compounding, transportation, sale, exchange, dispensing, giving away, importation or exportation . . . .” Immigration and Nationality Act, Pub. L. No. 82-414, 66 Stat. 163 (1952) (codified as amended at 8 U.S.C. §§ 1101–1537) (emphasis added). However, the Act did make deportable noncitizens “who are narcotic drug addicts,” though this language does not explicitly include misdemeanor offenders charged with minor possession. Id. § 212(a)(5).
[5] Fifty Years Ago Today: President Nixon Declared the War on Drugs, Vera Inst. of Just. (June 17, 2021), https://www.vera.org/news/fifty-years-ago-today-president-nixon-declared-the-war-on-drugs.
[6] Benjamin T. Smith, New Documents Reveal the Bloody Origins of America’s Long War on Drugs, TIME (Aug. 24, 2021, 12:49 PM), https://time.com/6090016/us-war-on-drugs-origins/.
[7] Id.
[8] War on Drugs, Britannica, https://www.britannica.com/topic/war-on-drugs (last visited Jan. 27, 2025).
[9] Smith, supra note 6.
[10] War on Drugs, supra note 8.
[11] See President Ronald Reagan, Address to the Nation on Campaign Against Drug Abuse (Sept. 14, 1986) (transcript available at https://www.reaganlibrary.gov/archives/speech/address-nation-campaign-against-drug-abuse).
[12] See id.; see also President Ronald Reagan, Radio Address to the Nation on Crime and Criminal Justice Reform (Sept. 11, 1982) (transcript available at https://www.reaganlibrary.gov/archives/speech/radio-address-nation-crime-and-criminal-justice-reform).
[13] War on Drugs, supra note 8.
[14] Latocia Keyes et al., America’s Anti-Drug Abuse Act, the Disproportionality of Drug Laws on Blacks: A Policy Analysis, 18 Just. Pol’y J., no. 2, Fall 2021, at 6.
[15] Reagan, supra note 11.
[16] A Price Too High, supra note 3; see also Kristin Butcher & Anne Piehl, Crime, Corrections, and California: What Does Immigration Have to Do with It?, Pub. Pol’y Inst. of Cal. (Feb. 2008), https://www.ppic.org/publication/crime-corrections-and-california-what-does-immigration-have-to-do-with-it/.
[17] Drug Trafficking, U.S. Sent’g Comm’n, https://www.ussc.gov/research/quick-facts/drug-trafficking (last visited Jan. 27, 2025).
[18] Id.
[19] President George H. W. Bush, Statement on Signing the Immigration Act of 1990 (Nov. 29, 1990) (transcript available at http://www.presidency.ucsb.edu/ws/index.php?pid=19117#axzz1OsUYZ1g).
[20] 8 U.S.C. § 1227(a)(2)(B)(i).
[21] Human Rts. Watch & Drug Pol’y All., supra note 1.
[22] Id.
[23] Id.
[24] A Price Too High, supra note 3.
[25] Berkeley Lovelace Jr., US Drug Overdose Deaths Reached All-Time High in 2021, CDC Says, Today (May 11, 2022, 11:04 AM), https://www.today.com/health/behavior/us-drug-overdose-deaths-reached-time-high-2021-cdc-says-rcna28339?os=ios0&ref=app.
[26] Deidre McPhillips, Drug Overdose Deaths Top 100,000 Annually for the First Time, Driven by Fentanyl, CDC Data Show, CNN (Nov. 17, 2021, 12:27 PM), https://www.cnn.com/2021/11/17/health/drug-overdose-deaths-record-high/index.html.
[27] Quick Facts: Fentanyl Trafficking Offenses, U.S. Sent’g Comm’n (2021), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/quick-facts/Fentanyl_FY21.pdf.
[28] David J. Bier, Fentanyl Is Smuggled for U.S. Citizens by U.S. Citizens, Not Asylum Seekers, Cato Inst. (Sept. 14, 2022), https://www.cato.org/blog/fentanyl-smuggled-us-citizens-us-citizens-not-asylum-seekers#:~:text=Fentanyl%20smuggling%20is%20ultimately%20funded,immigrants%20for%20the%20same%20offense.