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William J. Stuntz | Criminal "Justice" | Shared Pathologies | Hatching a Gadfly
Prosecution Clinic | Innocence Project | Strip Searches and Immigration Stops

catherine scott bernard '07

Photo courtesy Terry Wolf

Hatching a Gadfly:
A Defense Attorney on the Front Lines of the Drug War

by Catherine Scott Bernard ’07

Well, so what? That’s the kind of people they were; maybe there was something to it ….” That was the classic formula of the philistine in those years. “There was probably something to it …. In our country they don’t arrest people for nothing.”

—Aleksandr Solzhenitsyn, The Gulag Archipelago, Vol. 1.


What would Solzhenitsyn make of the 21st century American criminal justice system? In 1939, 938 people out of every 100,000 in the Soviet Union were in the gulag. Seventy years later, 766 out of every 100,000 Americans were incarcerated, and 2,433 out of every 100,000 were on probation or parole. While our observer would be heartened that a U.S. inmate is six times less likely to die in custody than his early-twentieth century Soviet counterpart, he might be more curious about the philosophy of criminal justice that animates a free society jailing its citizens at a rate approaching Josef Stalin’s.

In prison, one essentially forfeits all civil rights. Probation is not much better; one loses Fourth, Fifth, Sixth, arguably Eighth, and often First and Second Amendment rights. A probationer can be reincarcerated on the thinnest of evidence. The fact that clients routinely request straight prison time instead of probation was initially shocking, but considering what probation requires in terms of money, time, and risk, the choice makes sense for a lot of people.

Working as a public defender has made me increasingly curious about our philosophy of criminal justice as well. Debating the merits of a law is one thing when you’re talking to the people who make and interpret and argue those laws, but it’s quite another when you’re talking to the people who are actually affected by them.

I spend a lot less time discussing theory and precedent, and a lot more time telling terrified families why their loved ones have been hauled off to jail and terrified inmates why they likely won’t be going home soon. Those conversations can be heart-wrenching even when the accused really has done something to deserve that treatment; it is just naturally unpleasant to watch people suffer.

But when those accused are charged with nothing more than peacefully using or distributing politically unpopular drugs (in contrast to alcohol, for example, which is legal but generally claims a broader range of negative effects), explaining why our country has deliberately chosen to treat them in the same way that we would a thief or a child molester becomes more than unpleasant—it becomes untenable.

The untenable seems to make up much of my routine, though. A client learns he is facing fifteen years in prison for sharing his prescription. A burglar has his charges dropped after he lets law enforcement watch him buy marijuana; the young man who sold him the nickel bag goes to prison. Some officers take the witness stand and lie fluidly about how a handcuffed man voluntarily gave them consent to search his house. The jail hallway echoes with the shouts of desperate men locked up for months or even years without formal charges. I beg a prosecutor to suspend a prison sentence so that a grandson caught with less than a gram of cocaine can continue caring for his ill grandfather. Sadly, these small events express our philosophy of criminal justice.

More precisely, that philosophy is articulated by what legally triggers these moments. When should we send armed men after our fellow citizens? Though the term “armed men” may sound harsh (a prosecutor once made an objection to my use of that term during a motion to suppress hearing, which the judge overruled despite characterizing my phrasing as “dramatic”), it feels even more so to the people pulled out of bed at 3 am by a SWAT team and locked up in a strange and dangerous place filled with strange and dangerous people, many of whom, in their eyes, are the people wearing uniforms. Whether the incarceration lasts an hour, a month, or twenty years is irrelevant at that point; what matters is that a person could be labeled a criminal with immediate and often permanent consequences.

The forceful and intrusive nature of an arrest or even a search makes it difficult to understand why supporters of drug laws justify them by claiming that most drug offenders do not receive the lengthy prison sentences contemplated by statute. The cry of “But we hardly ever enforce the specified penalties!” suggests at the very least that the law is poorly designed if so many guilty people get off lightly. The larger problem is that focusing on lengthy, post-conviction terms of imprisonment captures only a small fraction of the total enforcement activity involving drug laws.

Being in jail for any amount of time is a fundamentally traumatic experience. Some people are strip searched. Some are beaten during the arrest or afterwards. A broken jaw is terrible, but even more so if you’re locked in a room with the person who broke it. The drug war reaches far beyond the millions serving prison sentences to the millions more who are sitting in jail waiting to get or make bond, or to have their probation revoked, or to go to trial after the case has been continued so many times by the state.

One of my clients was arrested in 2009 on 68 felony counts of “withholding information from a practitioner to obtain a prescription.” Bond was set at $200,000 because of the number of charges, a sum my client could never afford. The district attorney’s office refused to indict the case for a year and a half. That meant no opportunity to plead not guilty, no opportunity to investigate the charges, and certainly no day in court to fight his case.

So the case was indicted (13 of 68, at least), and we were finally able to get discovery and see what sort of evidence the state had—thirteen prescriptions from my client’s doctor for pain medications. Since the statute criminalizes withholding information from a practitioner about prescriptions from other doctors, I looked forward to being able to vindicate my client at trial as soon as his case was placed on the calendar.

But when it was called for trial, the assistant district attorney—an intelligent, capable young woman who in no way believes herself to be doing anything but striving to bring justice to dangerous people—announced that she would have to request a continuance because she had not served all her witnesses. I pointed out how my client had been in the county jail for over twenty months and desperately wanted to prove his innocence, but the judge granted the continuance as a matter of course. When the case next appeared on the trial calendar, I was determined to give my client his day in court, and subpoenaed all of the state’s witnesses myself to ensure that the prosecutor couldn’t use the same excuse again. This time she asked for a continuance because she wanted to re-indict the case; apparently the charges that were good enough to keep my client locked up for so long weren’t good enough to take to trial. To no one’s surprise, the continuance was granted. The judge listened sympathetically to my objections regarding the timeliness and propriety of the state’s behavior, but noted “Well, it is their prerogative.” As of today my client has been in jail for over two years with no opportunity to defend against the charges.

Prosecutorial discretion, which is legally enshrined at numerous critical phases of criminal proceedings, means giving prosecutors vast power with the expectation that it will rarely be used to its fullest extent. Setting aside the historical naiveté that would allow anyone to think that a grant of coercive authority will go voluntarily unused for long, this results in a complete absence of meaningful checks on prosecutorial conduct in practice. It doesn’t matter whether it seems unreasonable to keep a man in jail for two years with no formal charges; the prosecutor wanted to do it, and the law allows it.

Continuances are similar to the common practice of dismissing a case on the morning of trial. One day, the case is good enough to justify giving someone five years in prison and another ten on probation; the next, the state doesn’t have enough evidence to proceed. It’s even more pernicious when the offer is straight probation time, for such an offer is almost always worth it to avoid the serious risk of a jury trial—but once you’re on probation and bereft of all constitutional rights, they’ll hardly need anything at all to lock you up.

For example, I had a client on a ten-year probation sentence who was accused of three counts of distribution of cocaine. On the stand, a Georgia Bureau of Investigation agent admitted that he had been “mistaken” about the evidence he claimed to have against my client, but the judge didn’t seem to mind, and my client went to prison for eight and a half years. The Court of Appeals declined to review the decision, as they do with almost all applications for discretionary review of probation revocations. My client is spending over eight years in prison based on a weak allegation that he engaged in consensual drug transactions with adults who sought him out for that purpose, and it won’t even show up as a drug offense in prison statistics.

These situations would be cause for concern even if the charges being investigated were rape or murder or burglary. But when the crime being investigated is a man taking prescribed pain medication, the hundreds of thousands of dollars in state time and resources being brought to bear on this matter don’t seem particularly well-invested.

How should these resources be invested? Almost all the big cases we hear about involve violent or property crimes, since that’s what we naturally think of when we think of a crime—something that forces harm on someone else. That narrative makes it difficult to believe that half of federal prisoners are there for drug offenses only. The temptation when confronted by another’s bad fortune is to attribute it to some fault or error, the better to ignore the chance that such bad luck may strike oneself as well. Once the decision has been made to label people who engage in a certain activity as criminals, it becomes entrenched in our collective psyche—like Solzhenitsyn’s contemporaries, we believe they must have done something wrong if we’re all treating them this way.

Who, then, is to be declared criminal? We have a dismal record when it comes to social engineering by laws and force. We have enacted some truly terrible laws in the United States, which despite repeal still support some stubborn beliefs. In 1850, the Georgia Supreme Court ruled that a will purporting to free the decedent’s slaves was void, since manumission was prohibited by law. A quarter of a century later, we would begin federally prosecuting users and distributors of birth control. We’ve arrested people for witchcraft and for riding in the wrong train car, and taken children away from gay parents. Marital rape was legal in some states until the 1990s, and women and blacks haven’t yet possessed full voting and property rights throughout the country for even a full century.

These examples challenge the argument that we have an obligation to rigorously enforce and obey the law simply because it is the law. Yes, order and precedent are valuable, but not when they are the only logically consistent justification put forth for retaining practices that involve using force. A useful test is whether or not a given set of arguments could have been used to support something like slavery—if so, it’s wise to be suspicious of giving those arguments too much weight, especially when evaluating other types of sweeping legal-cultural policies that our descendants may find as unenlightened as Jim Crow or the Comstock Act.

The tendency to see things a certain way because they have always been that way can hide big mistakes. Criminal justice is shot through with error, but we are slow to improve it because it appears to be more right than wrong, despite the shame of individual cases of mistreatment. Every generation considers itself too enlightened to repeat the mistakes of the past. If so, then isn’t it time we got serious about reforming our criminal justice system?