Note: This is the postprint of the following paper; publisher version available here.
Jacques, Scott, and Richard Wright. 2010. Drug Law and Violent Retaliation. Chapter 11 in Criminology and Public Policy: Putting Theory to Work, 2nd ed., eds. Hugh Barlow and Scott Decker. Philadelphia, PA: Temple University Press.
Abstract: None for this paper.
Sir Francis Bacon (1939:56) believed “the true and lawful goal of the sciences is not other than this: that human life be endowed with new discoveries and powers.” The goal of pure science is to understand behavior, while the goal of applied science is to control behavior. These two forms of science can inform one another, as further understanding of behavior can lead to greater control of it, and the outcome of efforts to control behavior can lead to further understanding of it.
The objective of scientists working within the paradigm of pure sociology is to understand social behavior (Black, 1976, 1995, 1998, 2000), and the objective of this book is to apply theoretic knowledge to criminal justice policy. In this chapter, we draw on the work of the first and foremost pure sociologist, Donald Black (1976, 1983), to provide a purely social explanation of (1) variation in the creation and application of drug law and (2) how variation in the application of drug law affects variation in the quantity of violent retaliation in drug-related conflicts. We conclude by discussing how Black’s theorizing about these matters might inform public policy.
Within any given jurisdiction – city, county, state, or country – the government, or State, oversees the drug-related behavior of persons, pharmacies, factories, crack-houses, restaurants, or any drug-involved actors. “Law is governmental social control…. It is, in other words, the normative life of a state and its citizens, such as legislation, litigation, and adjudication ” (Black, 1976:2). For the purpose of understanding drug law we find it useful to differentiate cases of drug law according to whether the government is (1) the complainant, meaning law is applied without a citizen’s request, or (2) a reactive mediator, meaning one or more disputants request the government to become involved in the dispute (e.g., with a phone call to the police) (also see Black, 1980). The quantity of “State-complainant” and “State-mediation” law applied to drug-related behavior varies widely across time and space. Why are some drug-related behaviors defined as illegal while others are not? Why are some actors subject to more drug law enforcement than others? Why are all victimizers of drug-involved persons not punished equally?
In the seminal work of pure sociology, The Behavior of Law, Black (1976) postulates a theory of law that, in part, uses social status to explain variation in the magnitude of law applied to actors. Any given actor’s social status increases concomitantly with gains in wealth (vertical status), community involvement (radial status), organization (corporate status), knowledge or conventionality (symbolic status), and respectability (normative status). Variation in the social status of disputants is, according to Black’s theorizing, the source of variation in the quantity of law applied to offenders. We now explore how the social status of drug-involved actors affects “State-complainant” drug law and “State-mediation” drug law, in turn.
Black’s (1976) theory of law predicts that, all else equal, offenders with lower social status will have more State-complainant drug law applied to their behavior. Thus, we propose the following relationship between State-complainant drug law and social status:
The quantity of State-complainant law applied to a drug-involved actor increases as that actor’s social status decreases.
In other words, drug using, selling, or producing has more law applied to it as the user, seller, or producer decreases in status. This proposition applies to actors involved with different drugs and to actors involved with the same drug. The proposition predicts that the drug behavior of low status actors is more likely to be criminalized, more likely to lead to arrest, more likely to result in conviction, and more likely to lead to harsher punishment. In the remainder of this section, we explore the effect of social status on drug law legislation and enforcement, drawing on the five distinct forms of social status.
Vertical status increases as an individual’s wealth increases, whether that wealth resides in drugs, territory, or cash. Black’s theory of law predicts that the higher an actor’s wealth, the less law is applied to that actor’s drug-related behavior. The effect of vertical status can be seen across the Americas. Consider the following situation in Brazil: “Poor users and small dealers are under closer surveillance….In most cases, the justice system merely endorses a discriminatory vicious cycle in which the more modest dealers and users are sentenced to prison while high-level arms and narcotics traffickers seldom are” (Zaluar, 2001:437). Farthing (1997:267) reports that Bolivia’s Anti-Drug Law 1008 has had especially negative consequences for the poor. Likewise, many American criminologists, sociologists, and philosophers have argued that drug laws have a disproportionate impact on the poor (see, e.g., Tonry, 1995; Husak and Marneffe, 2006). Legal warrants are customary in the United States for government searches of property, but the “rights” of the poor are more likely than those of the rich to be voided: “In the fall of 1988, the Chicago Housing Authority instituted a new policy designed to rid the city’s public housing projects of drug dealers. Dubbed ‘Operation Clean Sweep,’ the policy authorized warrantless, random searches of tenants’ apartments by Chicago police officers and housing authority agents” (Glasser and Siegel, 1997:237).
The more involved an actor is with the institutions of the community, such as family and work, the higher the actor’s radial status. Black’s theory of law predicts that the more integrated an actor becomes with the community, the less drug law is applied to that actor’s drug-related behavior. James Spradley’s (1970) famous ethnography, You Owe Yourself a Drunk: An Ethnography of Urban Nomads, is an exemplary firsthand account of how radial status affects the distribution of drug law. “Urban nomads” are men who travel alone from one American city to the next “bumming,” a life of begging and alcohol drinking. When an urban nomad is in court on a “drunk charge,” the offender can “make a statement” to beat or lessen the penalty. Spradley (1970:183-4) writes:
The tramp learns which factors influence the judge as he sentences a man to jail for public drunkenness, and his statement reflects these concerns. The following questions which judges asked defendants were recorded from court sessions and reflect the kinds of issues to which men’s statements will respond:
Are you employed?
Are you married?
Do you live with your family?
If I suspend your sentence can you find a job?
Are you permanently employed?
If I give you an opportunity will you go pick apples?
Equal justice for all under the law is the maxim of this court, yet when we consider to whom the judge gives sentences and who escapes them, we must conclude that some men are more equal than others….[T]he man with the most resources [i.e., radial status] is rewarded….As a man moves into the world of tramps he loses many things which middle-class Americans consider important: steady employment, wife and family, interest in work, and a sedentary existence. The man who has retained any of these resources has a better chance of escaping incarceration than others. [Bullet points added by authors.]
The more organized a group is, or the more memberships an individual has, the greater their corporate status. According to Black’s theory of law, variability in corporate status results in the differential application of drug law, with more status garnering better treatment. Perhaps the best illustration of this process can be found in the interplay between drug law and drug-related behavior of the State. In modern times, the actors with the highest degree of organization are often States. Since actors with the most organization have the highest corporate status, law is applied in smaller quantities to the State than it is to less organized entities. For example, in the Netherlands, government-run pharmacies are permitted to distribute as much marijuana as is deemed necessary for the patient’s well-being, while privately owned coffee shops are legally restricted to distributing no more than five grams of cannabis to a customer at one time, even for customers who are prescribed marijuana by a doctor (Coffee shop manager, 2006). In a similar vein, starting in the 1970s, British doctors were required to be affiliated (i.e., have a membership) with the government health system before being permitted to prescribe heroin in the treatment of addiction (Stimson and Oppenheimer, 1982). Consider the heroin-addiction treatment program that emerged in post-Soviet Poland:
The 1997 [drug] law…specified (Art. 15), that methadone maintenance was generally permissible, but it could be implemented only within the framework of the, so-called, high threshold programs, run by selected public health organizations that obtained special permits from the Ministry of Health. This meant that neither private clinics nor privately practicing physicians were eligible to obtain such an authorization and prescribe methadone. (Krajewski, 2003)
The symbolic status of actors increases in tandem with gains in conventionality. As Black observes: “Some kinds of culture are more conventional than others: They happen more frequently” (Black, 1976:67). Also, symbolic status increases as knowledge increases. Black’s theory of law predicts that an actor who is less conventional and less knowledgeable attracts more drug law.
The effect of knowledge on drug law is clearly evident in the United States, where a person must be “a physician board certified in addiction psychiatry or addiction medicine” (Abood, 2005:168), or have “proof” of knowledge, in order to prescribe and dispense schedule III, IV, and V opioids used for the maintenance or detoxification treatment of heroin addiction. Not only does knowledge exempt some from the application of law, it can also decrease penalties for breaking the law:
[There] is a typical situation in which the pattern of sentencing is strongly biased to provide longer terms to those lower down in the hierarchy of drug dealing. Higher level dealers have more bargaining chips; namely, they can inform on many others in the organization because they simply know more: “The accused, a low-level ‘runner’ for a drug operation, knew only a very few people in the operation. Therefore, he had nothing to ‘bargain’ in terms of giving information to prosecutors. He was sentenced to a minimum of 20 years in prison. In the same courtroom, same judge, same drug operation, a drug dealer very high up in the organizational structure could and did name a dozen people around and below him. For his ‘cooperation with the prosecution’ he received a reduced sentence of only two years in prison.” (Duster, 1997)
Another indicator of symbolic status is race or ethnicity, with the symbolic status of a particular race or ethnicity increasing as its relative prevalence, or conventionality, in the population grows. The preeminent historian of U.S. drug legislation, David Musto, attributes the origins of American cocaine laws to the low symbolic status of blacks (1999:7). Smoking opium, Chinese immigrants, and the passage of drug laws predictably came together in the United States (Morgan, 1978; see, also, Reinarman and Levine, 1997:6), the Netherlands (Kort and Korf, 1992), and Australia (Manderson, 1997). In each of those countries in the late 19th century and early twentieth century, the predominantly – if not entirely – Chinese practice of smoking opium was made illegal, whereas other “non-Chinese” or “white person” forms of opium use remained legal.
Symbolic status also has an effect on drug arrests. Using needle exchange survey data and ethnographic observations of two outdoor drug markets as indicators of the racial-ethnic composition of low-level drug deliveries, Beckett, Nyrop, and Pfingst (2006) found that in Seattle, Washington, blacks and Latinos are disproportionately more likely than whites to be arrested, and this finding held true even when other variables were controlled for – such as outdoor versus indoor selling (presumably affecting detection) and rates of drug involvement by race.
Variability in symbolic status affects legislation and arrests but it also has an impact on outcomes at the prosecution level:
[S]tudies by both the Sentencing Commission and the Federal Judicial Center have found that among offenders who engaged in conduct warranting a mandatory minimum, white offenders were less likely than blacks or Hispanics to receive the mandatory minimum term. In addition, since the mandatory minimums have been enacted, the gap between the average sentence of blacks and those of other groups has grown wider. These racial and ethnic differences indicate that one or more features of the current system have a proportionally greater impact on blacks and Hispanics than on whites…. [Furthermore, there is a] significant relationship between sentence length and citizenship. (Vincent and Hoffer, 1994:23, n70)
The effect of low symbolic status on punishment for drug-involvement was starkly evident in Nazi Germany. The Nazis divided apprehended narcotic addicts into two groups: (1) the genetically inferior, defined by, among other things, a genetically conspicuous family and a moral deficiency (i.e., Jewish), and (2) the reformable, or improvable, defined by a genetically inconspicuous family and racial value (i.e., of “Arian” decent) (Mach, 2002:381). The “reformable” narcotic addicts fared much better than their supposedly “genetically inferior” counterparts who were “subjected to sterilization and/or commitment to a work or concentration camp” (ibid.:384).
The more an actor is subjected to social control, the lower that actor’s normative status, or respectability. Law is one form of social control (Black, 1976, 1989, 1998), and Black’s theory of law predicts that the more drug law that has been applied to an actor in the past, the more law will be applied to that actor’s future drug-related behavior. The law’s “prejudice” in this respect is so strong that it is actually written into legal codes that call for greater punishments for repeat offenders. In the United States, for instance, a conviction for manufacturing and/or distributing a kilogram of heroin results in varying penalties for different normative statuses: those with no prior felony drug convictions are punished with no less than 10 years in prison, whereas a second time offender is penalized with a sentence of no less than 20 years, and offenders with two or more previous drug convictions risk spending the rest of their lives behind bars (21 USC Sec. 841). Drug users (as opposed to dealers or manufacturers) with previous drug-related convictions also experience worse treatment from the law. For example, a person found in possession of a gram of cocaine for personal use serves no more than one year in prison if it is a first offense. But if that same person has a prior drug conviction, he or she faces no less than 15 days and up to 2 years in prison; and two or more previous convictions earns that same offender a prison stay of no less than 90 days and no more than 3 years (21 USC Sec. 844).
To summarize, the amount of State-complainant drug law that is applied to a drug user, dealer, or producer increases as the wealth, community involvement, organization, knowledge, conventionality, or respectability of the actor decreases.
The effects of State-complainant drug law do not exist in a vacuum; they have important implications for another aspect of drug law: mediation. “State-mediation” refers to any conflict where disputants leave the fate of their case in the hands of the government. Rather than the complainant (e.g., a robbed, burglarized, or defrauded drug seller or buyer) retaliating unilaterally against the offender (Black, 1983; Cooney, 1998; Horwitz, 1990), the government mediates the case and, to some degree, exacts vengeance from the offender on behalf of the victim.
Here we are concerned solely with how normative status affects State-mediation because State-complainant drug law directly affects the magnitude of normative status. Remember that normative status is defined by the quantity of social control applied to one’s behavior, with being subject to more social control equating to lower status. This means that the more State-complainant drug law applied to an actor, the lower that actor’s normative status. According to Black’s theory of law, State-mediation varies from one conflict to the next as a function of the victim’s normative status:
In a drug-related dispute, the quantity of State-mediatory law applied to an offender decreases as the normative status of the victim decreases.
In other words, the amount of law applied to an offender in a drug-related dispute will rise as the victim increases in normative status. The above line of reasoning suggests that greater applications of State-complainant drug law leads to less law being applied to offenders in drug-related conflicts because victims have lower status.
The following case is a prime example of how variation in the normative status of victims affects the quantity of law applied to offenders. In the course of a single incident, the normative status of the victims was lowered, and for that reason so too was the quantity of law applied to the offenders:
The complainants were a young, white couple. The male was the primary story teller. He stated that he was delivering furniture in the area. His girlfriend accompanied him occasionally on his deliveries and was with him the night of the robbery. As they parked on the street, three individuals approached them, displayed knives, took them inside a building, and robbed them of $80….The police arrived on the scene as the defendants were fleeing the building. The D.A. …determined that the [victims] were an innocent young couple; the case was slated for the grand jury. About two minutes after the case was sent to the typist, the male complainant returned to the D.A. and stated that he was in the area to buy heroin. He did not want his girlfriend to know about the buy. The D.A. recalled the papers and reduced the charge to a misdemeanor. (Stanko, 1981-2:236-237, our emphasis)
Involvement in a heroin buy lowers an actor’s normative status because there are laws prohibiting such behavior. When the victim lowered his respectability by revealing his illicit behavior to the D.A., the quantity of law applied to the offenders was decreased – from a felony to a misdemeanor.
Thus far we have argued that low-status actors are subject to more State-complainant drug law, the result of which is less law is applied to victimizers because the drug-involved victims have lower normative status. If the creation and application of State-complainant drug law affects the use of State-mediation in drug-related disputes, then perhaps variability in the use of State-mediation affects the volume of another form of social control: violent retaliation. In a classic article, Crime as Social Control, Black (1983) argues that disputants with the least access to law are the most likely to engage in violent retaliation.
As related specifically to the drug world, Black’s theory predicts that as more State-complainant drug law is applied to drug-involved actors, there will be more violent retaliation in drug-related conflicts because disputants will have less access to mediatory law for the reason they have lower normative status. Thus, we propose the following relationship between State-complainant drug law and retaliatory violence:
In a drug-related dispute, the quantity of violent retaliation applied to an offender increases as the amount of State-complainant drug law applied to the victim increases.
Stated differently, as drug-involved persons are subject to more State-complainant drug law, they lose access to State-mediatory law to settle disputes, and so their conflicts become more likely to be handled with violent retaliation.
Although we are unaware of any study that documents the rate of mediatory law or violent retaliation per drug-related conflict, we believe that figure 1, below, is an accurate approximation of the interplay between State-complainant drug law, State-mediation, and violent retaliation.
It seems reasonable to speculate that – because the actors involved are less respectable – disputes over crack-cocaine turn violent more often than disputes over marijuana, which involve more violent retaliation than conflicts over illicit pharmaceutical drugs, which involve more violent retaliation than conflicts over alcohol, which involve more vengeance than quarrels emanating from coffee use and distribution. According to the proposition above, if the quantities of law applied to, say, alcohol- and marijuana-related behaviors were reversed then alcohol-related conflicts would involve more retaliatory violence than marijuana-related conflicts. Similarly, if the same amount of law was applied to crack- and cigarette-related behavior then, the theory suggests, there would be similar rates of violence in these two drug markets.
There is evidence in the United States and abroad for the above proposition. In a time-series analysis, Jensen (2000:31) found that American alcohol “[p]rohibition and its enforcement increased the murder rate.” Likewise, in an analysis of 414 New York City homicides, Goldstein and colleagues (1997:117) found that 39.1%, or 162, of those deaths were directly attributable to “the exigencies of the illicit [drug] market system.” Between-nation variability in drug-related violent retaliation is understandable when viewed in light of the thesis that increased drug law promulgates violence. In Latin America, from Puerto Rico (Montalvo-Barbot, 1997), to Bolivia (Thoumi, 2003), to Brazil (Zaluar, 2001:438), there is evidence that increased law enforcement coincides with increases in drug-related retaliatory violence. In a cross-cultural study of drug law and homicide, Miron (2001) found compelling statistical support for the thesis that increased drug law enforcement increases violence, and speculates that “eliminating drug prohibition would reduce homicide in the United States by 25 – 75 percent” (Miron, 2004:51).
A comparison of violence and drug law in the U.S and the Netherlands, for example, reveals stark contrasts between the two countries. In the Netherlands, investigations, arrests, or criminal prosecutions for illicit drug use are relatively rare (Leuw, 1991). The relatively high respectability of illicit drug users and dealers results in relatively little violent social control:
The relative tolerance of hard-drug use in the Netherlands offers a probable explanation for low levels of violence. The police are not especially interested in small-time street dealers. Police practices, such as undercover purchases or pressuring junkies to serve as police informers, are normally not employed at the retail level of the hard-drug market. Consequently, the paranoia and retaliation so characteristic of drug scenes elsewhere exist to a moderate degree only. (Leuw, 1991:240)
The low rates of violence associated with lax drug law enforcement in the Netherlands seem to extend all the way up the distribution ladder. In an ethnographic study of the Dutch-Columbian cocaine trade, for example, Zaitch (2002:262) reports that he “soon became amazed about the number of conflicts that did not lead to physical violence.” Zaitch (2002:270) speculates that this must be related, at least in part, to the tolerant enforcement policy of the Dutch government:
[L]ow levels of violence are…related, paradoxically, to the lack of an American or Columbian model of internal war on drugs. Traquetos [i.e. Columbian drug sellers] in the Netherlands do not have to react against military operations, para-legal violence or summarial executions, actions that would logically expand the number of dead bodies on all fronts. Colombian traquetos seem to get the implicit message from Dutch authorities: “we tolerate you as long as you keep quiet.”
Set against the backdrop of the U.S.’s high rates of drug law and drug-related retaliation, it seems reasonable to suspect that the Netherlands’ quantifiably smaller amount of drug law has reduced the quantity of violence in drug markets there.
This chapter has drawn on Black’s (1976, 1983) theorizing to argue that as the social status of an actor decreases, (1) the amount of State-complainant law applied to the actor’s behavior increases, and so (2) the amount of State-mediation that responds to that actor’s victimizations decreases, and therefore (3) the amount of violent retaliation used by the victimized actor against the offender increases. What does all of the above portend for the future of drug control policy?
Before attempting to answer that question, it is important to point out that practitioners of pure sociology most often see themselves as doing “pure science.” Pure science is “that somewhat ephemeral category of research undertaken by men whose immediate goal is to increase understanding rather than control of nature” (Kuhn, 1977:233). The goal of pure sociology is not to change social life, but rather to understand it. Pure sociologists, for the most part, take the stance that “[s]ociologists, as sociologists, have no business telling people what moral or political positions they should take” (Cooney, 1998:149), but “provided the pure sociologist does not make the mistake of actually recommending policy…the approach can be used to design novel real-world applications” (Cooney, 2006). Below we discuss the policy implications of the propositions outlined in this chapter, but we do not take a moral stance on what policymakers should actually do.
Discrimination, defined as treating actors differently based on differences in their social status, is an important issue for many academics and laypersons alike. Discrimination, as shown above, is a natural phenomenon in the drug world; it occurs everywhere there is variation in social status (see Black, 1989). At least in the near future, differences in social status will not disappear and so neither will discrimination in drug law. Nevertheless, the effects of status variation on discrimination in drug law can be limited to some degree because social information – such as knowledge of an actor’s status – is a variable unto itself (ibid.:64-67). Social information is important to understanding discrimination because in the words of Black (1989:66): “All discrimination requires social information.” If there is no social information then social status will have a diminished effect on drug law. Conversely, if social information is increased, social status becomes more important.
What this suggests is that to reduce discrimination in drug law, the government could reduce social information. For instance, in any given drug-related trial, the defendant and complainant could be kept out of sight of jurors, and lawyers could be directed not to reveal social information (ibid.:68-70). This would limit social information in such way as to reduce both the rate and quantity of discriminatory behavior among jurists and judges. But distaste for discrimination is not constant from one dimension of social space to the next. While most regard discrimination against persons with low symbolic status, such as ethnic minorities, to be deviant and in need of reduction, these same persons often discriminate against persons who are low in another form of status, normative. For example, it seems perfectly reasonable to many that repeat offenders should receive harsher penalties. So, if society wants to discriminate against some forms of status but not others, social information should be reduced accordingly: greater in some places, less in others.
Discrimination in drug law is an important issue but so too is retaliatory violence. Work in the Blackian theoretical tradition suggests that to the degree drug law is reduced so too will drug-related violent retaliation. The more State-complainant drug law applied to an actor, the lower that actor’s respectability, the less State-mediation there is, and the more often violent retaliation occurs. Therefore, less State-complainant drug law – such as legislation prohibiting selling or consumption – leads to greater respectability, more formal mediation in drug-related disputes, and a reduction in the prevalence of violent retaliation.
It seems, however, that the moral climate of the United States is not currently conducive to repealing prohibitory legislation, so perhaps social information could be manipulated to reduce retaliation. As noted by Rosenfeld, Jacobs, and Wright (2003:307-8): “Persons who engage in…illegal activities…make up a disproportionate share of crime victims. Widening their access to legal resources could reduce their reliance on informal means of dispute resolution, and help contain the spread of violence.” It may be possible to widen legal access to criminals and thereby reduce violent retaliation by (1) informing citizens of their legal right not to divulge information that could incriminate them and (2) instituting a “Don’t Ask, Don’t Tell” policy in communities regarding the context of victimizations reported to police (also see Black, 1989; Cooney, 1998; Rosenfeld, Jacobs, and Wright, 2003).
The 5th Amendment of the United States Constitution protects persons from forced self-incrimination, so persons victimized while participating in the underworld need not reveal their own lawbreaking before the government will look into the case. In other words, the 5th Amendment gives citizens the right not to reveal social information about their own criminal activities. We wonder, however, what proportion of illicit drug users, dealers, and producers realize that, in fact, the 5th Amendment protects them from self-incrimination and thereby provides them with the opportunity to report some parts of criminal victimizations but not others to the police. For instance, a drug dealer who is robbed or burglarized of $1,000 in cash and a quarter-pound of marijuana can, in principle, report to the police his or her loss of cash but is not obliged to reveal his or her illicit activities (for an empirical example, see Jacques and Wright, 2008:217-8). Although this is pure speculation, our interaction with illicit drug-involved persons suggests to us that they are not fully aware of the implications of the 5th Amendment for their ability to access the law. Perhaps it is possible to reduce violent retaliation by increasing the use of formal mediation in illicit drug-related conflicts though a public campaign that informs persons of the implications of the 5th Amendment for reporting victimizations. In addition to a campaign to inform victims of their 5th Amendment right, we also believe that if a “Don’t Ask, Don’t Tell” policy could be agreed upon by citizens, police, and prosecutors then the use of mediatory law would expand among illegal users, traders, and makers because such persons would have less reason to worry that their own criminal behavior would be uncovered in the process of reporting victimizations. And if resort to mediatory law becomes more prevalent, then resort to violent retaliation should do the opposite.
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