4

How Drug Control Policies Are Applied and Enforced

The second panel of the workshop focused more on the enforcement of drug control policies. Speakers discussed the implementation and differential enforcement of drug control policies and their effects on individuals and communities of color, and they also offered suggestions for reforming the criminal justice system.

A TWO-TIERED JUSTICE SYSTEM

Marc Mauer of The Sentencing Project spoke about the racial dynamics of the criminal justice system as it applies to drug policies. He also offered suggestions about how to have more effective policies, improved public safety, and racial justice.

Mauer noted that the criminal justice system works in very different ways for Black families and White families. White families are generally better able to gather the appropriate resources to assist a young family member when compared to Black families, who may not have the same resources available.

These dynamics began in the 1970s, explained Mauer, with a rising crime rate in the early 1970s that led to the beginning of mass incarceration. Although many other solutions could have been put into place—such as economic interventions, family support interventions, education assistance, jobs programs, and so on—the major policy put into place was criminal justice intervention that in turn led to mass incarceration, especially for young Black men.

Contributing to the lack of policy strategies was that young Black men became the face of crime. Although not necessarily accurate, this was the widely shared portrayal, said Mauer. This is supported by research indicating that White people overestimate the percentage of Black people who commit crimes by 20 to 30 percent.

Additionally, White people identify drug crimes as primarily undertaken by Black people. And when crimes are seen as being caused by Black people, the support for punishment for that crime increases. This has led to “a very intimate relationship” between race and punishment, Mauer stated.

Although the criminal justice system and the war on drugs may look race neutral on the surface, it is anything but race neutral. At the arrest stage, for example, a study of law enforcement practices in Seattle found that police routinely prioritized arrests for crack cocaine (Beckett, 2012), which translated into prioritizing the arrests of African Americans.

After being arrested, prosecutors have a great deal of influence over the resolution of court cases, even in those situations where mandatory sentencing applies. In assessments of the imposition of mandatory sentencing, the U.S. Sentencing Commission has found that discretionary decisions by prosecutors result in racially biased outcomes. Despite mandatory sentencing laws, White people have a major advantage in avoiding mandatory sentences. An example of this is the 1986 legislation passed by Congress that created major disparities in sentencing for crack cocaine versus cocaine. Eighty percent of those charged for crack cocaine were African American.

Another example provided by Mauer is the laws that penalize drug transactions in school zones. Drug arrests in designated school zones frequently carry harsher sentences. Although the presumed idea behind these laws is understandable—to keep drug sellers away from playgrounds during the school day—the operationalization of these laws has the effect of leading to more arrests of Black people. Because in some states the boundaries of a school zone can be as much as half a mile surrounding a school, arrests in densely populated urban areas are more likely to result in a school drug zone penalty. In New Jersey, 96 percent of those arrested for enhanced school drug zone violations were African American or Latino.

Policies such as “three strikes” also include enhanced penalties for individuals with prior felony convictions. Although judges have always taken prior convictions into account, three strikes mean that 25 to 50 years, or even life, is added for the new offense. This is influenced by race in that Black defendants in court are more likely to have a prior criminal record than a White defendant and therefore are more likely to receive enhanced penalties. In California, for example, about 29 percent

of individuals who are incarcerated are African American. However, for three-strikes policies, 43 percent are African American.

Mauer explained that the focus on incarceration as a means for addressing substance use is a very wasteful use of resources. Most of the individuals who are incarcerated for selling drugs are not the kingpins, but rather the dealers on the street corners. If one dealer is locked up, it is easy for some other young person to step in to fill that gap.

Mauer concluded with his thoughts about what the nation broadly, and the criminal justice system specifically, should be doing better. First, there is a need to reorient where funding for substance use is going. There should be far more resources for prevention and treatment rather than for law enforcement. Second, he said, it is necessary to look closely at the collateral damage of the drug war caused by such laws as the three-strikes laws. Third, there must be a broader variety of options for individuals with substance use disorders. One potential option is drug courts, which have grown in popularity.¹

One final law described by Mauer was the felony drug ban in the welfare reform bill passed into law in 1996. This provision stated that anyone with a felony drug conviction would be prohibited from receiving welfare benefits or food stamps for life. States were, however, given the option of opting out of this provision, and a majority of states have opted out in full or in part. He said this was “a very irrational, illogical policy” to put into place.

Mauer concluded by saying that we need to end the two-tiered justice system that currently exists. Although we have made progress, we still have a long way to go, he said.

THE CASH BAIL SYSTEM

Alex Karakatsanis of the Civil Rights Corps opened his comments by noting that since 1970, the United States has been incarcerating individuals at a rate that is 5 times the historical average. The United States incarcerates at a rate of 5 to 10 times the rate of other, comparably wealthy countries, he said. And the U.S. rate for incarcerating Black people is 6 times the rate of South Africa at the height of apartheid. In Washington, D.C., over 90 percent of the incarcerated population is African American.

He also spoke about the importance of the language used to describe the U.S. legal system. For example, Karakatsanis noted that he does not use the term law enforcement, because he believes that only some laws are

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¹ Drug courts were described earlier by Scott Nolen; this topic will be discussed in more detail later in this chapter.

enforced against some people. He also prefers the term legal system to justice system.

Karakatsanis offered his perspective on the legal system, which is that the system is very effective at reinforcing gender and racial inequalities. This is in contrast to the more common position that “the criminal justice system is broken.” Karakatsanis stated that we need to deconstruct the bureaucracy of the criminal justice system.

The example he presented is the cash bail system, which is in place in almost every jurisdiction (with a few exceptions, including the city of Washington, D.C.). After an individual is arrested for a criminal offense, to return home, a cash bail must be paid. If unable to pay, that individual must go to jail. Karakatsanis estimated that there are between 400,000 to 450,000 individuals in this situation. He called this a modern version of debtors’ prisons.

One example shared by Karakatsanis was the process in the city of St. Louis, Missouri, which he observed. Bail hearings are conducted by video from the jail. What ends up happening is if the person in jail cannot pay their bail, the judge will encourage him or her to plead guilty and pay a fine to leave jail. In Karakatsanis’ example, a young woman who was a passenger in a car was pulled over because of a registration issue. A burned marijuana cigarette was found in the ashtray, which led to arrests for everyone in the car. The young woman was unable to pay her $200 bail, so she was put in jail. While in jail and speaking with the judge via video, the judge encouraged her to plead guilty, even though it was not her car, and she reported having no knowledge of the marijuana in the car. With the judge’s encouragement, she pleaded guilty—and ended up with a drug arrest record. Finally, if the young woman does not pay the assigned fine, she can be arrested again and put back in jail. This puts people in a cycle of jail and debt, and more jail and more debt.

Karakatsanis’ organization, the Civil Rights Corp, has filed class-action suits in 12 different cities to challenge the cash bail system. The organization has had some successes, including a very significant case in Harris County, Texas, where 13,000 individuals who were charged with misdemeanor offenses were released from jail. Similarly, when their case was won in Chicago, 1,500 individuals were released from jail. One worry, however, is that making changes to the cash bail system could result in more pretrial detention, he said. Karakatsanis mentioned California as an example. Although a bill was passed to eliminate cash bail, he called the bill “a chilling document.” The fear is that a cash bail system would be replaced by a system of preventive pretrial detention.

The Harris County, Texas, case, according to Karakatsanis, was the first case about the cash bail system ever put on trial. Harris County is responsible for about 50,000 misdemeanor arrest cases each year. Over 8 days,

expert witnesses testified, including judges, sheriffs, and district attorneys. One of the critical facts was the finding that over 40 percent of those 50,000 arrests were detained in jail because they could not pay the couple of hundred dollars of bail money. Additionally, about half of that 40 percent ended up pleading guilty after a few days. More than 72 percent of individuals who are charged with a federal crime are detained pretrial and for the entire duration of their prosecution.

The judge, in the end, wrote an almost 200-page opinion against the cash bail system and all of the justifications that support the cash bail system. Of course, the cash bail industry spent millions of dollars to try to overturn the opinion.

There are also financial implications to this, he noted. The bail industry makes billions of dollars a year, Karakatsanis said, primarily from low-income families of color. Additionally, those individuals who are arrested must also pay for drug tests and electronic monitoring devices. He pointed out that the shift of money from bail to pretrial supervision is still occurring on the backs of low-income families of color.

Karakatsanis concluded his remarks by speculating the reasons for keeping the bail system in place. First, there is the profit motive. Also, the bail system is incredibly efficient for the legal establishment; the typical bail hearing in Harris County was 10 to 20 seconds. This process coerces guilty pleas, he said, especially in drug cases. He said:

He also noted, “there’s a lot of racial dynamics going on” with the cash bail system. His final comment was that we must “focus on trying to understand the deeper causes in the criminal justice system.”

DRUG TREATMENT COURTS, PART II

Judge Greg Jackson is a senior judge on the District of Columbia Superior Court in Washington, D.C. From 2012 to 2016 he served as the presiding judge for the Superior Court Drug Intervention Program (SCDIP).

Drug treatment courts began in Florida in 1989. The District of Columbia initiated SCDIP in 1993. Drug treatment courts (DTC) are one of several recognized alternatives to incarceration that have been adopted by criminal justice systems both in the United States and abroad. In 2018 there were approximately 3,500 drug treatment court programs in the United States and a growing number of international programs. Most DTCs are post adjudication programs where individuals participate as

a condition of probation following a guilty verdict. SCDIP is one of the very few pretrial programs that allows for participation in the treatment program in the earliest stages of the criminal case processing system.

Prior to joining the court, Judge Jackson was the general counsel for the D.C. Department of Corrections. This allowed him to have a close-up view of what happens to individuals when they cycle through the jail and prison systems, he said. Judge Jackson noticed that a person’s addiction would often go into remission while in prison. However, without appropriate treatment, the person’s addiction would quickly reemerge upon release back into the community.

DTCs demonstrate that criminal justice systems and addiction treatment systems can be mutually reinforcing. While the traditional criminal justice system model seeks accountability and punishment for antisocial behavior, DTCs recognize addiction as an illness and focus on treatment for this chronic and relapsing disease. DTCs link court supervision and treatment, thereby asserting legal pressure on defendants to enter and remain in treatment long enough to realize benefits.

There are substantial differences between traditional criminal courts and DTCs. In a regular criminal court, the defendant is present but speaks to the judge through his or her lawyer. In DTCs a defense lawyer is present, but since there is no discussion about the underlying cause, the participant can address the judge directly regarding treatment. The defendant has a voice throughout the process and is more actively engaged in his or her treatment. With such large caseloads, criminal courts are often most focused on case processing and docket management. DTCs generally have smaller caseloads and focus on participants’ wellness and sobriety. Criminal courts punish noncompliance and offer few if any incentives. DTCs encourage participants to strive for modest incentives. Sanctions are of short duration and designed to encourage program compliance. However, DTC judges always maintain the judicial authority to hold participants accountable while monitoring program compliance.

SCDIP is a sanction and incentive-based treatment program for pretrial offenders (see Box 4-1). It is a voluntary program for offenders with nonviolent misdemeanor charges, and certain eligible felony charges, whose drug use assessment demonstrates they need intensive outpatient or inpatient treatment. There are four phases to the program, each of which requires a minimum of 6 weeks to complete. Each phase requires attendance at treatment groups, random drug testing, and regular court appearances. Although the program is designed to be completed in 24 weeks, most participants require 8–12 months to successfully complete all requirements. SCDIP is an abstinence-based program; although legal, participants are not allowed to use alcohol or marijuana while in the program but are allowed medication-assisted treatment. SCDIP follows the National Association of Drug Court Best Practices for DTCs (see Box 4-1).

Judge Jackson noted that SCDIP holds a monthly progression and graduation ceremony for its participants. Graduates wear graduation robes and receive framed certificates. This is an important component of the program. Graduates, many of whom have never been recognized or rewarded for any type of accomplishment, are honored in front of their families, friends, judges, and others from SCDIP partner agencies.

DISCUSSION

One workshop participant asked about the scaling up of drug courts. He noted that there are far too many cases to make drug courts accessible to all. For example, there are about 15,000 criminal cases in Montgomery County, Maryland. The drug court program graduates only 5–10 graduates per year. Jackson reiterated that the program is entirely voluntary. Additionally, at all graduation ceremonies, the individuals progressing from one level to the next are also celebrated. Jackson also reaffirmed that the drug court program is not a panacea but an alternative to the typical criminal justice case processing.

Alex Karakatsanis added his perspective that the legal system is handling what is essentially a public health issue. This is, he said, an inherent limitation of dealing with social problems like mental illness and substance use. He brought up the example of Portugal, which has largely decriminalized drug use, as a model that the United States should consider adopting.

Jackson repeated his earlier comment that drug courts are not a panacea, but are one tool to provide additional services to individuals in need.

It is a difficult job to run a drug court, he said, but it is important to do something to address the problem of substance use, rather than do nothing. Ideally, more services, such as housing assistance, would be part of the system as well. “We are doing the best we can,” he said.

In response to another question, Jackson explained that there are drug court programs specifically tailored to women and women with small children.