58. Rap sheets
This is from the transcript of a bail hearing that happened to cross my desk. The speaker is a probation officer, in court to give his evaluation as to whether the defendant, up on drug charges, was a flight risk:
Judge, I found 16 misdemeanor arrests, Judge, 18 bench warrants. Fifteen of those were failure to appear. Twelve of them were in citations, Judge; 21 misdemeanor convictions, 21 felony arrests, Judge. There has been failures to appear, two parole violations, two probation violations, six convictions. I do show he has prior trafficking convictions.
There's doubtless a good deal of double-counting there. I imagine the probation officer was leafing through a file and reporting the figures as they caught his eye. But add up the numbers, divide by four, and you still get a pretty impressive rap sheet.
The man's record is a testament to a strong - even Iggy Pop-like - constitution. He was about 50 years old and had been doing drugs for most of them. And he was still getting in trouble in the usual poor-schmuck way: he volunteered to act as middleman between the customer and the dealer, hoping for a reward, or an opportunity to knock a corner off a rock, or both. And the customer was an undercover cop, of course.
"21 felony arrests ... six convictions". I won't say numbers like that are common, but it's not at all unusual for drug users to be arrested many times for every time they're prosecuted. That's one of the side-effects of the fourth amendment exclusionary rule. If there's a problem with the stop, the frisk, the seizure or the search (those are four distinct categories in fourth amendment law, each with multiple sub-categories), no big-city prosecutor will want to pursue a simple possession case against a small-time addict. What's the point?
The truth of this observation can be suggested by statistics. For example, the FBI reported that in 2000 there were an estimated 1.6 million arrests for drug crimes, while the Bureau of Justice Statistics reports that there were about 319,700 state-court convictions for drug crimes in the same year.
This is an apples-to-oranges comparison, because some drug cases (the big-quantity ones, and those on federal property) are prosecuted in federal court, and because many, maybe most, of those convicted in 2000 were arrested in previous years. So the figures don't prove that the ratio of arrests to convictions is 5-to-1. But I think the true figure is somewhere in that ballpark.
The thing about drug crimes is that the investigation is already over at the time of arrest. Once the cop pulls the cocaine out of your pocket, all that's left to do is the chemical analysis (and if it doesn't come out positive, you have something else to be upset about). There's not going to be a whole lot you can say to convince a jury of your innocence. So while some of the yearly 1.6 million avoid conviction by getting acquitted, their number is relatively small.
(Although my mother once served as an alternate on a grand jury that refused to indict a person who testified he had just picked up his coat from the dry cleaners, which explained how the rocks happened to be in his pocket.)
To the long list of costs of the war on drugs (see post 38) must be added this one: the creation of an army of people who have been caught red-handed doing something the law declares to be a felony, but who weren't prosecuted for it. One consequence of the creation of this army - the prevalence of drugs - is obvious. Future posts will address two other consequences that are a little less obvious.
Friday, January 27, 2006 at 12:44AM in Drugs, Exclusionary rule, Fourth amendment
Reader Comments (2)
Laying the blame on the exclusionary rule is ridiculous. I estimate that maybe 3-5% of cases, at the very most, get tossed for illegal searches and seizures.
In 2000, law enforcement agencies made an estimated 14 million arrests for all criminal infractions (excluding traffic violations). Drug abuse violations, with an estimated 1.6 million arrests, were the most frequent cause for arrest, continuing a 6-year trend.
It would be extremely difficult to estimate the number of separate charges, and I'm not sure why anyone would want to.
More generally, the post didn't address cases tossed by judges. It talked about decisions by prosecutors.