Friday Focus: Some Proposed Legislative Fixes to the Drug War

Today’s Friday Focus is motivated by my own responses to Michelle Alexander’s powerful book on the racial dynamics of the criminal justice system. Reading the New Jim Crow is a sobering and challenging experience. The blatant racial injustice that persists in our criminal justice system, and the effective use of that racial bias to push millions of Americans into an under-caste, is astonishing and frightening.

Johnson Signs Civil Rights Act — Johnson Signs the Civil Rights Act of 1964 (photo credit: Wikipedia)

What I’m hoping to do in this post is contribute to a conversation about how we as a nation might go about reforming some of the injustices brought about by the Drug War. I’m not claiming that my proposals here will completely solve America’s racial problems or bring an end to racial injustice. That would be overly naive of me. Nor am I claiming that the proposals I am going to put forward are perfect. They may not even be workable, and I’m hopeful wiser minds than mine will put forward some serious considerations regarding what I’m proposing here.

All of that said, here are the ideas that came to my mind as I have thought about how we might undo at least some of the wrongs perpetrated in the name of “criminal justice.” Essentially, the goal of these proposals is two-fold: First, to change the structure of the War on Drugs so that it is no longer in the vested interest of police and prosecutors to focus most of their attention on small-time dealers and users of drugs (in effect, perpetuating the “drug problem” while exponentially increasing the penal population), instead making pursuing large-time drug producers, traffickers, and kingpins the primary objectives of police action. Second, to reduce the drastic and damaging impact of the War on Drugs on minority communities.

Reform Police Procedures: One of the things highlighted about the War on Drugs by Michelle Alexander is that, contrary to popular opinion, the structure of the war tends to drive police toward the capture and prosecution of small-time users and dealers of drugs rather than taking out major kingpins. The profitability of current police tactics in terms of confiscated money and property and increased federal subsidies tied to increased drug arrests largely ride on the use of warrantless searches, which are conducted without consequence because of repeated protection by the Supreme Court. However, evidence indicates that stop-and-check programs by police, as well as “pretext searches” where traffic violations are used to check for drugs, and even many SWAT team raids are notoriously ineffective (to the tune of 95-99% yielding no drug finds). The discretion given to police in performing these checks is one of the means by which African American and Latino communities are disproportionately targeted, and thereby incarcerated, by police in the War on Drugs, but the dragnet application of such searches is a threat to the civil liberties of all Americans. If we change the rules of the game so that random, warrantless searches can no longer be conducted without consequence, the quantity of such searches may decline and police may be less likely to overtly target members of minority communities without probable cause related to a particular individual’s actions. Here’s one way we might force police to reform their methods:
1. Individuals checked for a warrantless search who are not found to be in possession of illegal drugs should be given a certificate by police entitling them to collect a $25 renumeration for their being inconvenienced by a warrantless search. These certificates should clearly outline the procedure for collecting this renumeration and also include the time, date, and identification of the specific officer who performed the check (making all of this information public record).
2. Individuals subjected to a SWAT team search of their home or business which yields no drug find should be given by the police a certificate entitling them to renumeration equivalent to the full amount of assessed damages to their property and $100 per individual in the home or business at the time of the search. These certificates should clearly outline the procedure for collecting this renumeration, and also include the time, date, and identification of the commanding officer who commanded the search.
3. Officers whose effectiveness at identifying individuals for search falls below 50% should be required to perform remedial training which should include a component in combatting racial discrimination.
4. Federal financial support for drug task forces should no longer be tied to rote numbers of drug arrests but to evidence that police operations are decreasing drug crime in their jurisdiction (either by showing that drug availability in the area has declined, that major leaders in the drug operation have been successfully arrested and prosecuted, or that actual drug crime/usage rates have declined within their jurisdiction).
Reform the Mandatory Minimum Process: Another major facet of the drug war is the explosion of the penal population due to the long-term nature of drug prison sentences. The system, however, is largely slanted against minority communities and members of lower economic classes. As noted in some of the quotes given on Tuesday, mandatory minimums are frequently used as a bargaining chips for plea deals. Those without information or money, who cannot thereby “deal,” are the ones most affected by lengthy mandatory minimum sentences. It has also been well-documented that mandatory minimums tend to be higher for drugs used more frequently by minorities. Finally, when comparing mandatory minimum sentences with sentences for comparable drug charges in other developed nations, it becomes readily apparent that the mandatory minimum regime poses a significant threat to the eighth amendment right to not face cruel or unusual punishment. The most simple way to reform this system is to change the rules so that all illegal drugs are treated with the same sentencing guidelines and to scale back those guidelines to be more comparable to similar practices in other developed nations. Here might be a proposed scaling back and reform of the mandatory minimum regime:
1. Simple Possession: 6months min, 1 year max
2. Possession With Intent to Deal: 1 year min, 5 years max
3. Small Scale Trafficking/Production: 1 year min, 5 years max
4. Large Scale Trafficking/Production: 5 years min, 10 years max
5. Managing or Operating a Drug Ring: 10 years min, 15 years max
Reform the Power Granted to Prosecutors: The mandatory minimum regime, which effectively ties the hands of judges, has transferred an enormous amount of power to prosecutors, who can control what charges are levied (even if they don’t have enough evidence to win them) and what deals are made. Effectively, the dice are loaded in such a way as to give prosecutors enormous bargaining potential, forcing most people to accept a plea-bargain which implicates them self, even if they are not actually guilty. Another way in which this power is used is to grant leniency and particularly generous deals to those who have more information, money, or resources to give as part of a deal. The result is that many kingpins walk away free while relatively unimportant players in drug operations and recreational users of drugs crowd American prisons with lengthy sentences. Curtailing the flexibility of prosecutors may discourage them from abusing this power and restore a greater degree of balance to the criminal justice system.
1. Charges not initially indicated at an individual’s arrest may not be added by a prosecutor unless the evidence is substantial enough that the prosecutor feels confident of their ability to win in court. Merely crossing the thresh-hold of “probable cause” should not be enough to “load up” charges on an individual simply to add pressure for them to enter into a plea-bargain.
2. Individuals who engage in a plea bargain may have their sentences reduced within the designated range but their charge should not be reduced to a lesser charge. Making plea-deals less flexible may discourage prosecutors from adding additional charges that they cannot prove in an attempt to increase pressure on suspects. It may also help embolden those who are innocent to stand their ground and have their day in court.
3. Property and/or money forfeitures and the offering of information to investigators made as part of a drug arrest or investigation may be considered as part of a plea bargain but cannot be used to reduce the time served below the mandatory minimum for the charge given. Having information, money, or property should not guarantee free passage for those who have genuinely committed crimes, especially not those who have committed more serious offenses.
Reform the Definition of “Felony” With Regards to Drug Crime: The most significant way in which the War on Drugs has an impact on racial minorities in America is through the heavy toll a “felony” conviction play in the lives of those convicted. Once labeled a felon, such individuals are barred from voting, ineligible for food stamps, barred from public housing, and legally discriminated against with regards to private housing contracts and job applications. Since the structure and tactics of the drug-war have overwhelmingly been applied against minority communities, these consequences effectively disenfranchise and impoverish a large percentage of members of the African American community especially. Changing the rules around these consequences could, more than anything, change the way the War on Drugs has adversely affected minority communities in America:
1. Only serious drug crimes (large-scale trafficking/production, and/or managing/operating a drug ring) or drug crimes coinciding with a violent crime should be considered felonies. Applying this rule retroactively to those previously convicted of minor possession or dealing of drugs would effectively re-enfranchise large numbers of minority communities and help to lift those communities out of the cycle of poverty that Drug War felony convictions have effectively confined them to.
Reform Jury Requirements For Criminal Trials: Another way to combat the overt racial disparities in the criminal justice system, which were especially highlighted by an all-female, almost all-white jury in the George Zimmerman trial, is to reform the way juries are formed so that a “jury of one’s peers” looks a little bit more like one’s actual peers:
1. A Nine-Member Jury for a Criminal Trial should consist of at least two individuals who share the same race/ethnicity as the defendant, at least two individuals who share the same gender as the defendant, at least two individuals whose age is within five-years of the age of the defendant, and at least two individuals whose level of education is comparable to that of the defendant. While these qualities may overlap in a given individual selected, no single individual should be considered to have met more than two of these requirements.