Tag Archives: drug crime

System overload: plea bargains vs. trial by jury

A recent NYT editorial by Michelle Alexander, civil rights lawyer and author of The New Jim Crowe, posits a striking question: What would happen if everyone who was charged with a crime actually exercised their right to a trial by jury?

If you grew up watching Matlock as much as I did, you might think jury trials are fairly common. Unfortunately, the vast majority of the accused take plea bargains; more than ninety percent of criminal cases never see a jury trial. Thus the amount of resources that would be required for all alleged offenders to receive jury trials far exceeds what is currently available at the state or federal level.

The answer to that question, then, is this: Chaos would ensue. Alexander writes:

Such chaos would force mass incarceration to the top of the agenda for politicians and policy makers, leaving them only two viable options: sharply scale back the number of criminal cases filed (for drug possession, for example) or amend the Constitution (or eviscerate it by judicial “emergency” fiat). Either action would create a crisis and the system would crash — it could no longer function as it had before. Mass protest would force a public conversation that, to date, we have been content to avoid.

So why do the accused so often take pleas? Haven’t we all been raised with the ideal that a jury of one’s peers is the highest standard of justice available in a democracy? Don’t we know that the burden of proof is with the prosecution, making it possible that even a guilty person could walk away unscathed from a jury trial?

The truth is, most people can’t afford a lawyer who will be able to spend any significant time or energy on them. They probably know little to nothing about the criminal justice system, and – particularly if they’re Black or undocumented – most of what they do know is more likely to instill fear or distrust than idealism or faith. So when they’re told (usually by their own defense lawyer) that a plea bargain is their best bet, that even if they’re innocent they’ll likely be convicted and given a much harsher sentence if the case goes to trial, many people feel powerless to challenge that.

And for a lot of folks, a plea bargain really is a good thing in some ways. Especially if the person is guilty of the offense, they often receive shorter sentences or probation from a plea bargain, and really can go home sooner. If they’re worried about what’s happening to their kids, for example, or just scared shitless by living in jail, many people will take the plea bargain first and ask questions later.

But once at home, secondary forms of punishment abound. Particularly for people convicted of drug offenses, public benefits like subsidized housing and food stamps are frequently revoked. Conviction records make finding jobs more difficult, and can result in people losing custody of their children. And if the person is convicted of another crime, the sentence could be much harsher as a result of the earlier conviction.

People who demand a trial by jury experience a longer waiting and trial period, and some probably do receive harsher sentences than the plea bargain would have offered. But many do not. And if the number of people who exercised their sixth amendment rights merely doubled, it would be enough to bring the current system to a crashing halt and require our country to seriously consider the way we lock people up.

It’s pretty depressing that simply utilizing our rights would so drastically disrupt today’s justice system. It’s also pretty exciting to think that the people who are often treated as the least powerful players in the criminal justice system have a very powerful resource at their disposal. That’s something to think about.

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New Jersey diversion program sparks familiar debate

New Jersey Governor Chris Christie is promoting the use of treatment before prison for low-level drug offenders. Though Christie promotes this as a money saving venture and is interested in diverting only the lowest-level offenders, it’s still lovely to see any moves away from expanding the prison system.

Ironically, the most significant objections to this move come from advocates for addicts. Elizabeth Thompson of the New Jersey Drug Policy Alliance argued, “It takes months for the general population to get help, but if you get arrested you’d get help more quickly. I question the fairness of that.” Check out the story here.

True dat, Ms. Thompson. But what’s the real problem here: that people who have committed crimes might receive the kind of assistance that would allow them to stay drug – and crime – free? Or that New Jersey has thus far failed to provide enough resources for everyone to get the help they need in a timely manner?

Fifteen years ago, a similar debate went on in New York state. Corrections Officer unions were up in arms about the public education grants that incarcerated people were receiving which made college education in prisons a possibility. CO’s in New York facilities were cheesed off that incarcerated people were getting free college educations while they couldn’t afford to send their children to college.

Instead of this race to the bottom in which no one wins, Thompson and other critics should be asking why the government can’t shell out money for drug treatment resources for all. Certainly if they weren’t paying to incarcerate roughly 7,000 drug offenders they’d have some extra bill$ to throw around.

Oh, and the folks who objected to the use of public education grants for incarcerated people were successful. Grants for higher education were revoked, and college programs were pulled out of correctional facilities state wide. I’m pretty sure that the working class still has just as much trouble paying for their kids’ education, but on the bright side at least we’re not coddling those darned criminals anymore.

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Fruit for thought: The War on Drugs

It’s comforting to think that the War on Drugs is fought something like the Civil War: an army of American cops and judges and politicians bands together to take down a rebel army of foreign and domestic meanies who are bringing drugs and trouble into this country so that they can afford in-ground pools and classic cars. Each army hauls out their  muskets and as long as we keep throwing money at the War on Drugs our criminal justice system shall prevail.

Tragically, I don’t believe that there really is a neatly organized Drug Army out there just waiting for some tricky-ass general to take them by surprise after a nice long Christmas bender (or something like that). As Kentucky State Justice Secretary J. Michael Brown put it:

“I don’t think we’re getting the worst drug lords into the prisons. We’re just getting the people who went out and got caught. It’s the low-hanging fruit.”*

So much for the Civil War model. Maybe the War on Drugs looks more like this:

Charming illustrations aside, I would be one sour grape if I was the low-hanging casualty in the War on Drugs. Since we haven’t figured out a great way to stop drug use or drug-related violence through penalizing the fruit, mayhaps it’s about time to try something different?

*I pulled that quote from the Pew Center’s wonderful report “One in 100: Behind Bars in American in 2008.” Check it out for terrific facts and figures.

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Harm minimization

In 1999, Portugal had a serious drug problem. One percent of the nation’s people were addicted to heroin. Folks were dying of overdoses, health complications, and H.I.V. due to sharing needles. The prisons were full, and the government was exasperated.

In a last ditch effort to do something, Portugal decriminalized personal drug use. They still prosecute drug dealers and traffickers, but people with less than a ten-day supply of pretty much any drug are generally sent to counseling, not prison. They call this “harm minimization” because it’s focused on reducing violence, disease, overdoses, and other threats to the health and safety of both addicts and the rest of the population.

I recently read Michael Specter’s “Getting a Fix,” a New Yorker article that compares Portugal’s approach to that taken in the U.S. He asks whether the “harm minimization” approach is working: Are incarceration rates down? Hospitalizations due to drugs? HIV and AIDS? The answer, for Portugal, is yes.

But he misses what I believe is the more important point when he fails to discuss the qualitative benefits of resisting the urge to incarcerate folks picked up once, or twice, or even ten times for simple possession. Above all, those people are allowed to continue living their lives. They can be productive employees, parents, partners. They won’t have to worry about re-entry stresses like finding a new job, getting a driver’s license back, or simply re-learning how to grocery shop. 

I like the phrase “harm minimization.” It’s an appropriate description of the way we approach loved ones with substance abuse issues. If you find out that your mother is an alcoholic, for example, you might be angry or frustrated, but my guess is that your ultimate goal will be to minimize harm – help her recover from her dependency while impeding as little as possible on the rest of her life. In fact, the vast majority of legal and illegal substance dependency problems are already treated this way, in America and elsewhere, through family intervention, private treatment, and emotional support.

No ones likes when someone they care about has an alcohol or drug problem, but we don’t typically advocate for our friends and family to be incarcerated, either. As a nation, Portugal has starting treating their citizens as though they care about them, and their families. Wouldn’t it be neat if we adopted a similar national stance?

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