THE WAR ON DRUGS IS UNDERMINING OUR JUDICIAL SYSTEM. JONATHAN APIRION
copyright, 2016, all rights reserved.
Ending the war on drugs requires a three pronged strategy. Like a three legged stool, it just won’t stand without all three legs. The first leg is decriminalization. Unfortunately, too many Republicans dogmatically reject decriminalization. The second leg is increasing responsibility and consequences for criminal actions other than merely possessing or using substances of any kind, which means eliminating what has become the routine overuse and abuse of substance use by the judicial system to excuse criminal conduct. Unfortunately, too many Democrats have become dogmatically invested in this form of mitigation and will not accept its elimination. The third leg is increased funding and support for programs that help people with substance abuse issues to overcome those problems. For such programs to work, they often have to incorporate a wide array of assistance necessary for such people to remake their lives in a manner that is free of destructive substance use. Unfortunately, Libertarians are dogmatically opposed to such programs and their necessary financial costs.
I spent the last fifteen years of my legal career as a prosecutor in Arizona, handling everything from misdemeanors to murders. While there is a growing awareness of many problems associated with the war on drugs, little has been said about the particular problems it causes for the prosecutors who have to deal with it on a daily basis. The war erodes the moral authority upon which prosecutors depend in what should be an idealistic profession. Both the public and prosecutors themselves need to perceive the role they play as fundamentally noble and just. Any degradation of a prosecutor’s moral authority diminishes confidence in their willingness to prioritize justice over winning cases or other lesser objectives. A prosecutor relies on that moral authority when it becomes necessary to either dismiss a case for which the public has become enthusiastic or spend resources on an unpopular one. That moral authority is key to maintaining public confidence when defending police actions involving force or intrusive search and surveillance. For many attorneys the idealism that underlies the crime fighting mission provided the motivation to choose prosecution over more lucrative alternatives.
The heart of the prosecutor’s moral authority is consensus about what constitutes criminal behavior. Murder, assault, fraud, theft and similar crimes directly victimize others and people support combating them with the most serious penalties and police powers. In contrast, recreational drug use may be unhealthy, but as long as the user does not do something like driving while impaired, such use does not directly victimize others. There is no deep rooted consensus supporting the use of police powers and criminal penalties to prevent unhealthy behaviors. Dubious pragmatic justifications for the expansion of police powers and criminal penalties to curb unhealthy behaviors make it difficult for prosecutors to see their efforts as noble or heroic when even those objectives are not achieved. Criminalizing intoxicants is just one of many unfortunate attempts to address societal ills by expanding the definition of criminal conduct. (Some, like the criminalization of interracial marriages, are motivated by a desire to enforce a particular belief system. Some, like the criminalization of riding a motorcycle without a helmet, are an attempt to curb an unhealthy behavior that seems to unfairly burden others with the associated medical costs.) However, for a variety of reasons, including the excessive police powers employed, the targeting of those who do not have a voice and financial incentives that distort priorities, the criminalization of intoxicants has had especially broad and pernicious effects.
The war on drugs engenders hypocrisy among prosecutors. Most prosecutors have never assaulted anyone or embezzled funds. Many, however, smoked some marijuana or tried a little cocaine when they were younger. At a minimum most know people they trust and respect who have engaged in (or continued to engage in) such conduct. It would be safe to bet that while prosecutors who have used an illegal drug when they were younger may regret it for one reason or another, none believe their actions involved the sort of criminal mentality that would have justified their incarceration or a felony conviction that would have prevented them from becoming a prosecutor. I once justified my participation in drug prosecutions with the argument that smarter, more careful people do not get caught, so penalizing the more reckless is reasonable because they should not end up in positions of responsibility anyway. I eventually realized that more often than not, it is class and race rather than cleverness that determines who is pursued and convicted for drug offenses.
The criminalization of victimless activities inevitably leads to troubling enforcement practices. Selective, prejudiced enforcement more readily manifests itself in the decisions of well-meaning officers when the offense is not clearly criminal. When officers pursue and arrest someone who has committed a theft or a violent assault the officer’s motivation is more often than not, a real desire to protect other people from being similarly victimized. In contrast, when an officer pursues someone for doing something that harms only themselves, it is rare that the officer’s personal motivation is to stop that person from victimizing themselves. When the motivation is not protection of innocents but rather “getting” someone for breaking a rule, the officer is more likely to focus their efforts on the types of people they distrust or fear. Such policing invites abuse, bullying and excessive use of force. It brings out the worst in people and can draw some of the worst people into the work. Ideally, prosecutorial discretion can be employed as one means of mitigating the negative effects of selective policing, but that discretion is often limited by political realities. Individual prosecutors do exercise discretion when handling drug crimes, but it is often used to make exceptions for people they see as having the possibility of a future that will be damaged by any sort of criminal conviction. Because we are each more likely to see that sort of future for people who are similar to ourselves, the result is disparate outcomes that are colored by race and class As a white male from a well-educated family, I know I used that discretion more often to give immediate non-criminal resolutions to people in whom I could see a little of myself.
All of the critical decision in any prosecution should be serious, but eventually every prosecutor becomes aware that drug prosecutions are different. Individual prosecutions have no appreciable effect on drug crimes as a whole. Removing a person at any level from an organization results only in their replacement. When police and prosecutors realize that it doesn’t really matter if any particular suspect gets away or not, drug prosecutions take on a game like quality. You worry more about the opinions of your boss or the law enforcement you work with than about what might happen if an individual criminal escapes punishment. I used to lose sleep over the possibility of something going wrong with a case against a child molester or violent offender. That didn’t happen with drug crimes.
The use of force or intrusive searches for policing serious crimes does not carry the same common sense logic when utilized in the context of drug crimes. Ideally, the government’s use of force or intrusive surveillance should be limited to those actions that any reasonable individual citizen would undertake themselves, if they could. For example, if you walk by your neighbor’s house and you see him about to stab a child, you would not hesitate to knock down the door and intervene if you had the capacity to do so without getting yourself killed or endangering others. We all support the police taking such actions on behalf of citizens who cannot do so themselves. In contrast, if I walk by my neighbor’s house and I see him firing up a bong, even if I genuinely believe he is harming himself, I do not think it would be right for me to kick the door down to stop him by force. Even if I sincerely believe that my neighbor’s drug use will result in unemployment or poor eating choices, I do not think it would be right to use force to intervene. There is no consensus of public sentiment authorizing police to take such actions on our behalf. That police, in enforcing drug laws, can do so is terrifying and it undermines faith and trust in prosecutors who defend such actions in court. The use and abuse of intrusive surveillance raises similar concerns.
A prosecutor’s moral authority depends, in part, on treating people who commit similar crimes similarly whenever possible. The war on drugs regularly involves the use of informants and testimonial plea agreements with co-defendants to secure convictions. The result is that defendants who have committed identical crimes end up with very different outcomes and penalties. Sometimes a better deal for one person can be justified by their comparatively minor involvement in the crime or fewer prior convictions, but the truth is that the better deals often go to the earliest caught, the one with the savvier attorney or the one who will make the better witness.
Drug courts create their own set of problems for the prosecutor. Drug courts vary, but many require the prosecutor to play a role in support of a therapeutic approach towards the defendant that subverts and distorts the crime fighting mission. Ideally, the prosecutor’s exercise of discretion ends at dismissing charges or pleading a case in a way that allows for necessary treatment where an individual’s criminal behavior is exacerbated by an addiction or mental health problem. Generally, in our adversarial system, the prosecutor is the one who advocates against poorly supported or exaggerated claims of mental health problems or addiction issues when they are offered as reasons to allow a defendant to minimize responsibility for their actions. That addiction issues do provide overwhelming mitigation for the “crime” of using or possessing a particular substance and that treatment is more appropriate for such actions than punitive sanctions is one of the essential problems with categorizing such actions as criminal. However, the increasing, and often unquestioning acceptance of drug use and addiction as mitigation in the context of other real crimes involving real victims distorts the prosecutor’s role when prosecutors must support drug courts and a judicial perspective system that embraces addiction as an excuse.
Being a good social worker or therapist means focusing on what is best for the client. Being a good prosecutor means prioritizing the safety of the community. In this respect, the defense attorney has more in common with the social worker than does the prosecutor. The defense attorney’s moral authority depends upon loyalty to their client. Even if a defense attorney knows their client is guilty and believes they are likely to hurt other people if they go free, the defense attorney is obliged to pursue every legitimate opportunity to avoid a conviction. Drug courts are well intentioned but their dependence on the participation of prosecutors to maintain the threat of convictions and incarceration while working with the “team” of counselors and defense attorneys to avoid having to resort to such measures distorts and diminishes what should be the prosecutor’s limited and clear role in the judicial system. Drug courts serve to sustain the infrastructure of the war on drugs by clothing its inequities in the garb of something more humane and reasonable. That drug courts have had some success in reducing recidivism speaks to the great unanswered need for the sort of support and guided treatment they provide. Unfortunately, the statistics obscure the degree to which participation is limited to those for whom such programs are likely to be successful. The feel-good support that drug courts garner ignores the harm they cause by distorting the prosecutor’s mission and role.
We have to ask ourselves what kinds of people we want serving as prosecutors. Do we want prosecutors who lack life experience or wisdom? Do we want prosecutors who are not bothered by hypocrisy? When prosecution is no longer viewed as a noble endeavor we endeavor we end up with prosecutors care more about winning than justice. We end up with prosecutors who are happy to deal out felony convictions for anything so long as a rule was violated. On the flip side, when prosecution becomes therapy in the context of an attempt to mitigate the absurdity of criminalizing unhealthy behavior with drug courts and similar half-measures, we end up with prosecutors who are more competent and committed as social workers than as advocates for the punitive side of the justice system. The best prosecutors have always provided leadership and guidance towards both reasonable restraint and the zealous pursuit of criminals. Their commitment to prosecution has been idealistic. The elected officials come and go while the career prosecutors stay. They stay because they believe in the work. The war on drugs undermines that commitment for many.
Jonathan Apirion, March, 2016, Copyright, all rights reserved.