Why we can’t seem to end the war on drugs

Clarence, a client of mine, should have never been prosecuted for a felony drug offense.  He is a 54 year old African-American man who has always lived in Baltimore.

He has a tight knit family and several part-time jobs. He also suffers from mental health problems and a drug addiction that he’s labored with for years. His criminal record is non-violent.

Clarence should not have spent four months in jail awaiting his court date for allegations that he aided two individuals, half his age, in selling heroin in a public market- which he disputes. The State ended up dismissing his case.

{mosads}As the winds shift surrounding the enforcement of drug laws in our country, it may be hard to imagine that circumstances like Clarence’s still occur, but they do. I see them all too frequently as a public defender in Baltimore City of over 12 years. Cases like Clarence’s come about because of a multifaceted war on drugs being waged in the United States that is difficult to stop.

Legislative

Most criminal laws, at the state or federal level, come about as a reaction to fear. Drug laws are no different. High profile, headline capturing stories of pain, loss and despair are powerful tools that force legislators to act. 

Lawmakers act by making laws. As a society, we’ve been conditioned to believe that creating new crimes and increasing penalties for existing offenses will deter future crimes like the high profile instance for which the new law was enacted.

There is no better response to this fallacy than the fact that the death penalty, the ultimate sentence, is proven to be an ineffective crime deterrent.  In the early 1980s, fears of drug epidemics and crime waves spilling out of urban areas coupled with blatant racist motivations allowed for the passage of stiff drug laws across the country. 

Mandatory sentencing based on the amount of drugs involved in a case or someone’s prior record combined with new ways of charging drug cases like possession with the intent to distribute (to close the gap between dealing and possessing) to become foundations for drug laws that underlie our war on drugs. The laws don’t account for someone like Clarence.

Law Enforcement 

Once strict laws are in place, police serve as the government’s enforcement soldiers in the war.  

But policing in cities, particularly in black neighborhoods, is much more visible and aggressive than elsewhere. Quotas and arrest numbers drive cops to carry out too many stops and searches. Even after the release of a scathing DOJ report detailing illegal activities of the Baltimore Police department, black people are still being stopped in ways that don’t happen to white people. I see it on body camera footage in my cases.

Police violations of people’s’ rights can never be rectified in hindsight with “evidence” cops recover. This rationale has driven a wedge of mistrust between entire communities and law enforcement. The reality though, is danger exists for both sides. Civilians are brutalized and  killed by police all too often, but cops risk their lives as they make arrests, go undercover or search residences.

Yet, cops faithfully enforce drug laws by fishing with a large net, and if that net nabs someone like Clarence, so be it.

Prosecution

Prosecutors take control of cases once the police make their arrests. Prosecutors have tremendous discretion as to what happens at that point, but have been reluctant to step back and consider justice alternatives for many drug offenses.

In Baltimore and most jurisdictions around the country, defense attorneys like myself often see less experienced prosecutors handling drug cases without understanding a drug case’s relative importance to victim crimes. Having this insight is vital in an overburdened and under resourced system. 

Also, prosecutors typically refuse to allow defendants to accept reduced pleas to lesser counts and insist on felony convictions when they have options. Even drug treatment courts, which guarantee probation sentences with treatment components will often require pleas to felonies.

Numbers, statistics and punishment still seem to drive prosecutions rather than focusing on the root of why someone is involved in a drug case The State has showed little interest in addressing Clarence’s addiction, only in shoring up their case against him.

The Court System

The final front in the War is the courtroom; where justice rarely prevails. A judge should not set an unaffordable bail amounts for minor drug offenders (In Clarence’s case bail was set at $25,000). After 4 months of incarceration and help from social workers in my office to find a community treatment program, a second judge decided to release Clarence before trial, a rarity.

In Baltimore, judges too often set unreachable, unconstitutional bails for poor defendants, leaving them in jail, presumed innocent, as they await trial, a pattern seen in cities across the country.

Beyond bail, with sentencing, judges have to understand the impact that drug convictions have as permanent stains on people’s lives because expungement rights (to wipe clean a record) are generally not available.

Procedurally, the bench also has to realize that drug cases need to take a back seat to more serious violent and property crimes. More importantly, courts are also where policing can be improved through closer scrutiny over challenges to police stops and searches. In many ways, courts sanction the misconduct of officers by consistently ignoring violations of citizens’ fourth amendment rights. 

Trial courts need to recognize the realities of the streets and appellate courts have to understand they they are giving cops carte blanche to overstep their bounds. What starts off as an illegal rummaging through someone’s pocket can spiral into an injury or death. Fortunately for Clarence, the court didn’t have to weigh in on his case since the State dropped the charges when he first appeared for trial. He is better off having benefited from treatment, but what he went through was not justice.

Hope

The war on drugs is like an onion with its many layers, but some hope is out there for change. Baltimore’s new pilot initiative to redirect petty drug offense arrestees in a tiny pocket of the city to treatment and services prior to booking is a great start.  Movements for “Justice Reinvestment” are also sweeping the country focusing on creating new ways to address drug cases rather than punishment.

A big victory for reinvestment in Maryland came with the rollback of several mandatory sentencing laws surrounding drug offenses.

Now that our justice department has told us how discriminatory police practices have been; now that we know that drug laws aren’t evenly enforced across races and jurisdictions; and now that we know that punishment isn’t as effective as treatment, we have to push forward for more reform on every front until the last battle is fought in the war.

Todd Oppenheim is a public defender in the city of Baltimore. He ran for Baltimore Circuit Judge in 2016. His writing has been published in the Baltimore Sun and the New York Times.

The views expressed by contributors are their own and are not the views of The Hill.