Prohibition failed a century ago. Its revival today threatens vulnerable Americans

Americans want many of the same things, including economic security, educational opportunities and skill training, and safe, affordable housing. 

Achieving these goals can be challenging for people of all backgrounds. But over 70 million Americans — more than one in every five — also confront a system designed to sabotage them. They are your sons and daughters, siblings and parents, neighbors and friends who have been through this country’s criminal justice system.

For decades, lawmakers have been on an incarceration binge, promoting policies causing the imprisoned population to balloon — policies such as mandatory sentencing laws, three strikes laws, stop-and-frisk policing, and the abolition of parole. Our organization works to amplify the power of people who have been directly impacted by the criminal legal system, and nearly a decade after our founding, we welcome the increasing numbers of Americans who recognize our criminal system as one that disproportionately plagues Black, brown, and poor communities. 

To its credit, the Biden administration recognizes these disparities and the systems of oppression that fuel them. But one key federal agency is about to implement a far-reaching policy that would unleash the legal system on millions of formerly incarcerated people who are already struggling to build better lives.

In a throwback to the century-old failures of the Prohibition era, the Food and Drug Administration is finalizing a federal criminal ban to prevent the adult use of flavored tobacco products like menthol. In a stark departure from cessation services or harm-reduction policy — the science-based and preferred approach of many public health experts — and in contrast to emerging policy around marijuana decriminalization, the FDA is reviving Prohibition-style criminal punishment.

We are not defending smoking — in fact, we strongly support public health goals around curbing tobacco use. And our concerns are not for the tobacco manufacturers who are the stated target of this new ban, but rather for the tens of millions of formerly incarcerated Americans who will inevitably become collateral damage in this latest federal zeal for over-policing.

Menthol and flavored tobacco are the tobacco products predominantly preferred by people of color, with over 80 percent of Black smokers using menthol.

As advocates for Americans with criminal histories, we know that many formerly incarcerated individuals, most of whom are people of color, use tobacco. The reasons are easy to guess, given the various barriers erected between formerly imprisoned people and pathways to opportunity.

People in the communities we serve will tell you that they smoke to relieve stress or curb hunger — or sometimes to help form social bonds. Many picked up their tobacco habits while in prison and studies have shown that a history of incarceration is consistently associated with a higher rate of smoking.

Despite repeated warnings from civil rights leaders — including the mother of Eric Garner and the brother of George Floyd, individuals killed by police officers after altercations involving tobacco products — FDA leaders refuse to acknowledge the potential negative impacts of this federal criminal ban on communities of color, including concerns raised by a number of law enforcement groups such as the Law Enforcement Action Partnership.

The FDA has promised that the federal government will keep criminal penalties aimed squarely at manufacturers, rather than individual consumers — perhaps hoping nobody will notice that most states have laws on the books requiring their law enforcement agencies to enforce federal criminal bans at the local level.

Massachusetts demonstrates the hollow nature of the FDA’s promises. As the first state to implement this kind of ban, the state’s tobacco task force, which includes representatives from the state Attorney General’s office, is now struggling with a growing, dangerous illicit tobacco market. Reversing earlier assurances, the task force has now recommended criminal enforcement against individual consumers — in other words, criminalizing possession, the very thing the FDA has promised will not happen.

Similar concerns have also led to a standoff over this criminalization approach between New York Gov. Kathy Hochul and the overwhelmingly Democratic state legislature. Leaders like Assemblyman Nader Sayegh (D) have highlighted the glaring inconsistency between the governor’s decriminalization and promotion of regulated marijuana products, including flavored marijuana, and criminally banning menthol: “It’s not equitable to say: ‘Stop smoking hookah but you can go smoke pot.’”

It is disturbing enough to consider the growing number of negative police interactions that will result from this criminal ban for Black, brown and poor people — but the impact on the formerly incarcerated could be even more dire. For these individuals, continued use of a product that is legal and regulated today, but could be banned as soon as next week, would result in probation or parole being revoked, turning those people back through the same revolving door of our criminal justice system.

In America, when an individual completes a prison sentence, we are told that their debt to society has been paid. Tragically, though, we know that our legal system creates countless traps, big and small, constituting a permanent cycle of punishment that can be nearly impossible to escape.

These Americans deserve a second chance and the opportunity to get healthier. We need only look at our history to see that Prohibition will not work. Better solutions are readily available through smoking cessation services and harm reduction policies, healthier alternatives, and education and awareness. These science-based approaches have helped lead to all-time lows in smoking of both unflavored and menthol cigarettes by both adults and underage smokers.

Considering the impact of a new criminalization policy on millions of formerly incarcerated Americans, the Biden administration’s FDA has paved this road with good intentions — but we all know where such roads lead.

DeAnna Hoskins is President and CEO of JustLeadershipUSA (JLUSA), the only national-level criminal justice reform nonprofit that is both founded by and led by formerly incarcerated people. She is also the founder of the JustUS Coordinating Council.