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William J. Stuntz | Criminal "Justice" | Shared Pathologies | Hatching a Gadfly
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Shared Pathologies: Drugs and the Laws Against Them

by Cullen Couch

“Drug prosecutions send the message that one norm applies on city streets and another in suburban malls—and, to a large extent, that one norm applies to African-Americans and another to whites. Those messages do indeed teach, but what they teach most effectively is cynicism about legal institutions.”

— William J. Stuntz, Christianity and the (Modest) Rule of Law

Since the “war on drugs” began in the 1970s, federal and local law enforcement authorities have prosecuted as felons those involved in the sale, use, and possession of a growing list of narcotics, hallucinogens, and other illegal substances. To a large extent, they have focused those efforts on minority communities in towns and cities. Police and prosecutors claim they are responding to citizen complaints and violent incidents in those areas. Civil liberties advocates instead see a disturbing pattern of discrimination that has used drug criminalization to target minority populations and deny them basic rights. Whatever the cause, U.S. Department of Justice reports show:

No one can deny that many neighborhoods nationwide are suffering from the crime and violence that surround the drug trade. But what is causing it: the drugs themselves, or the laws criminalizing them? If it’s the drug that causes violence in one community, why wouldn’t it in all?

Catherine Scott Bernard ’07, a defense attorney working in a public defender’s office in Georgia, has had “surprisingly frank” conversations with prosecutors, judges, and law enforcement officers about the “war on drugs.” “Some of them stick to the ‘drug dealers are bad people’ line, but almost all of them acknowledge that the drug war has been a failure and is causing a lot of harm, and that it doesn’t make any sense to send all these nonviolent people to prison while real criminals walk the streets.”

Incarcerated Americans as Percentage of Population 1920-2008 (chart)

Rick Moore ’80, assistant Commonwealth Prosecutor for Orange County, Virginia, sees it very differently. “People get killed using meth, crack, cocaine, oxycontin, and ecstasy; they’re poison. They lead to more violence, more risky behavior, and more larcenies. They affect people’s judgment and their inhibitions. They destroy families.” 

According to Moore, the police in his jurisdiction do not target specific areas; they are responding to calls from the community where violence is interrupting their day-to-day lives. “Kids in these neighborhoods waiting at the bus stop or walking to school are at risk,” he adds. “You don’t want that to be part of their world. Should the police chief devote an equal amount of resources snooping around the dorms for non-violent drug sales, or devote his resources to the neighborhood putting up with shots fired every weekend?”

But Moore also sees a problem in ignoring “peaceful” users. He understands the rough road addicts walk, but his ultimate responsibility is to the larger community. “We look at drug users as victims, too,” he says. “We’ll offer them help and incentives to get clean. That’s a win for the community. But if they turn that help down, we can’t let them continue to damage the community by inviting drug dealers to sell to them. You have to fight it on the demand side and the supply side.”

Bernard sees it from the other side of the wall. “As the person responsible for shuffling these poor souls through the process while having to explain ‘Yes, I know that the officer bullied his way into your home and then arrested you for having half a gram of cocaine, but the law says you should go to prison for 15 years,’ I would dearly love to have some way to reconcile that. Handling cases for people rightfully accused of burglary or aggravated assault or something else terrible is easy, since what’s happening to them is mostly appropriate. It’s just hard having to look so many peaceful people in the eye and tell them how they are going to suffer even though they’ve never hurt anyone.”