100. Drugs and the exclusionary rule
The drug laws blur the distinction between criminal and antisocial behavior. No one who knows an aging pothead can doubt that all drugs, no matter how benign in moderation, can be devastating - hold on, that's a bit vigorous. They can be enfeebling with misuse. And some drugs aren't benign even in moderation, as a recent Frontline report on meth detailed with some hair-raising photos and graphs. (Check out the before-and-after mugshots - ever wonder what you'll look like after you've been dead several days? Makes you wonder why the makers of Sudafed haven't been hit with massive tobacco-style class actions yet.)
Years ago I listened to a psychologist's testimony that use of alcohol or drugs in adolescence tends to freeze the maturation process. A kid who starts getting stoned every day at age 13 will remain an emotional 13-year-old until he quits. I don't know if there's any research to back that up, but it explained a lot about high school in the 1970s.
Compassionate judges are reluctant to put pathetic, damaged people - people who are dangerous only to themselves and to anyone unfortunate enough to love them - in prison, where they will become fodder for the true psychopaths that abound in such places. (See post 93.) Luckily, from the judge's point of view, there's a way to avoid the necessity of doing that: suppress the evidence.
The exclusionary rule is extremely flexible. In my experience about half of all suppression motions could plausibly go either way, because there are so many boxes in the flow chart that call for a factual finding or credibility determination, which can't be reviewed on appeal. In the other 50% of cases, too, the trial judge can do whatever he or she wants, but the possibility of reversal gradually increases. (See post 53.) The temptation to tweak the system, just a little bit, to avoid burying some poor schmuck alive must be strong.
From the point of view of the beneficiary, it must be stunning to realize it actually doesn't much matter if a cop catches you with drugs in your pocket. You can get arrested, and arrested, and arrested, each time with absolute 100% gas-chromatographic proof of your guilt in the baggie inside your mouth (I don't understand why dealers think that's a good place to hide drugs, but they do), and never once get convicted. (See post 58.)
Given that a person who chooses to deal cocaine or meth on the street is, by definition, not very adept at calculating his own long-term advantage, it shouldn't be a surprise that he would gradually come to believe himself immune to the law. Like the rain-dancer who can point to the arrival of the rains, he has the logic of experience on his side. One might question whether this is a lesson our society is well-advised to teach its least responsibile members.
From the point of view of the cops and prosecutors, the frustration might be comical if not for the threat at the end, as Edward Conlon, a Harvard-educated Bronx policeman and author of Blue Blood, a great cop memoir, describes:
For months, we hit a dope spot run by a guy named Lamont, taking bundles of heroin weekly and in one nice grab, over a thousand dollars in cash. Though we were little more than an aggravation to him - he was always released, usually without bail - the aggravation did mount, and after I collared him the second time, he told me, "You're making this personal, you're costing me. You watch your back out there, something might happen."
From the point of view of jurors in hard-hit areas, the drug laws themselves are socially destructive. (See post 93.) Their reluctance to convict, and the judges' tendency to err on the side of suppression, combine to make prosecutors leery about pursuing anything but a slam-dunk case. Conlon captures that dynamic:
[I]n the Bronx, they rarely indicted for an observation sale, unless there were four or five buyers, with stash and cash recovered from the dealer as well. If you caught two buyers and the dealer, but he had no drugs, you didn't have a case. Or if you missed the buyers and just grabbed the seller, they only charged misdemeanor possession, even if he had felony weight several times over. ...
[T]he term "repeat offender" was nearly meaningless: almost every dealer we caught was charged with what they did once, twice, or three times, over a matter of seconds, when they did exactly that, hours a day, for months and years. They committed felonies more often than they ate, and if eating had been illegal, our food collars would have been thrown out or pled out because we didn't have the menu, the fork, the tip, the waiter, and the belch, all at once. We could bring in chain gangs of the morbidly obese, sumo wrestlers and opera singers by the groaning busload, and the ADA would say, "Well, according to the record, this was their first meal."
From the point of view of the drug warriors, it must be frustrating that no matter how much is spent on the War on Drugs, so little changes. Even the White House Office of National Drug Control Policy ( which has a massive incentive - bureaucratic survival - to massage the numbers) agrees that the overall effect of enforcement efforts, as measured by price, is mainly to provide windfall profits to a few well-positioned dealers.
In any town of any size, and I imagine in most of the small ones, too, even the straightest middle-aged church-goer has a pretty good idea where to go to buy some crack. They might not know what crack is, but they could point you to the marketplace. Forty years of effort have only turned mysteriously exotic opium dens into crack houses while creating an industry devoted to cleaning up meth labs.
Members of Congress and state legislators, either from conviction or from a wish to appear tough on crime, try to do something about drugs. Unfortunately, the only tools that fall readily to their hands are lengthening sentences or reducing good time. So punishments for drugs get way out of whack. When I began practicing criminal law in 1991, New Mexico punished the sale of a half-gram of coke as severely as second degree murder or child abuse resulting in death. Although the basic sentences for the latter two crimes have since increased, the sale of a second half-gram will still net you more than many murders.
The more extreme drug sentences become, the more incentive for judges to use the exclusionary rule to evade their harshness. But this produces its own dynamic. In The Common Law, Oliver Wendell Holmes wrote:
[T]here can be no case in which the law-maker makes certain conduct criminal without his thereby showing a wish and purpose to prevent that conduct. Prevention would accordingly seem to be the chief and only universal purpose of punishment. The law threatens certain pains if you do certain things, intending thereby to give you a new motive for not doing them. If you persist in doing them, it has to inflict the pains in order that its threats may continue to be believed. [p. 46]
So our legislators show their wish and purpose to prevent the drug trade, while judges resist inflicting the pains that are necessary for the law's threats to be believed, with the result that drug dealers are emboldened, with the result that our legislators increase sentences and reduce good time, and so on, around and around.
Monday, April 17, 2006 at 08:46PM in Drugs, Exclusionary rule, Fourth amendment
Reader Comments (2)
In some fashion, trust is the basis of all moral codes. A person who can not be trusted not to murder, rob, rape or steal does nothing to enhance the healthy reproduction of the genes of others, and so is excluded from the group by banishment, imprisonment or death. It strikes me that the civil and laws that everyone agrees on are those involving, in some fashion, trust between members of society. Those in which trust is not implicated, such as drug laws, do not invoke opprobrium at the genetic level, and thus are difficult to impossible to enforce. As an aside,it would also seem that trust ties the user to the pusher closer than it does to the society that makes drugs illegal. Judges use their power to supress evidence because at some level they don't preceive a violation of trust, and don't find inherent evil in drug law violations. If drugs were truly evil, rather than disfavored by some, almost every drug search would be reasonable. Today's society should recognize that the possiblity or probablility of self-inflicted harm to the informed user does not implicate trust, and does not justify criminalization. We'd be much more law-abiding. Just because something is unwise and should be discouraged does not mean it should be illegal.