San Jose City Council members are deliberating on an ordinance that, if passed, would make flavored and menthol cigarettes illegal, even for law-abiding adults. If passed, it would make these products unregulated, untaxed, sold and obtained in the underground market. If passed, it would ban not all tobacco, but the products preferred by over 21 African Americans, Latinos and Asians.
History has shown that just banning products we don’t like or morally align with doesn’t keep them away from young people or adults. We have tried it with alcohol and have seen its illegal use create one of the most dangerous crime waves in American history, resulting in countless arrests, prosecutions and deaths. In addition, legal prohibitions continue to draw the profits into the hands of criminal empires, cartels and gangs. Crime is increasing, but post-reports do not show that usage rates are decreasing.
The violence must stop. The senseless dedication to policy failure must be stemmed at the source, especially when our country is committed to reform and reconciliation between police and communities of color. But, we find ourselves in a paradox of legalizing marijuana while banning and criminalizing menthols. The police don’t need any more reason to approach our young people, nor our black men.
We have taken a different approach with cigarettes for several decades, choosing evidence-based education campaigns over prohibition. These work. Smoking is at an all-time low. Smoking cessation and therapeutic programs remain the most effective ways. We need to learn from our fellow Californians in San Francisco that a ban can put San Jose in the national headlines for the wrong reasons – to spur an increase in smoking among young people.
As a Californian, lawyer and public servant, I am concerned about the unintended consequences of arrests for possession or sale of menthol cigarettes by people of color if this measure were to pass. I support public health efforts, but I have seen too many arrests and prosecutions for petty offenses over the years.
Opening the door to a ruthless criminal justice system has had a negative impact on African Americans who are more likely to be wrongfully jailed and victims of police violence.
When you ban a product preferred by communities of color, what do you think happens to that same community when police stops lead to questions like “Hey, is that a menthol?” Tell me where you got it, and I’ll let you go. They stop and threaten to arrest âsuspectsâ for minor violations, such as dropping out or disorderly conduct. Just look at how many Blacks and Latinos are in the criminal justice system. What started out as self-initiated police checks then led to other charges and criminal justice issues like mass incarceration, criminal records or worse.
Lawmakers are not at the forefront of enforcing the policies they enact. Police and other regulatory bodies are. Just watch the viral videos of police arrests of blacks in Rancho Cordova, California, Ocean City, Maryland, New York and countless others to tell you that the persecuted are sometimes also prosecuted.
I call on city council to reject any legislation that imposes your will on a community while blindly ignoring that police enforcement of the ban cannot be “protected” by words. You will create another point of contact with law enforcement – one that could be negative, harmful, perpetuate criminal justice issues and imprisonment, or worse.
How to quit smoking without increasing illegal sales? With education and cessation programs, not a ban.
Yvette McDowell is a retired Pasadena City prosecutor and a member of Women Law Enforcement Leaders.