The Other Side of the Drug Crime Incarceration Debate

There has been a growing consensus in recent years about the injustice of current drug policy. This consensus holds that: One, the United States incarcerates far too many people for drug crimes. Two, enforcement has been racially biased and a major contributor to the high incarceration rates among black men. And three, drug prohibition is a key cause of violence in underclass communities.

But as I have looked into this issue, I have come to believe that this consensus misses the reality of what is going on. In this post, I will share some passages that made me question the conventional narrative.

We’ll start with an excerpt from the acclaimed book Ghettoside by LA Times journalist Jill Leovy. The book is an excellent investigation into issues of crime and policing in the ghetto of South Central LA. Jill notes that most crime was not a direct result of the drug trade, but of “male drama”:

The fights might be spontaneous, part of some long-running feud, or the culmination of “some drama,” as Skaggs would put it. These male “dramas,” he observed, were not so different from those among quarreling women of the projects. In fact, they were often extensions of them. “Women work through men by agitating them to homicide,” observed an anthropologist studying Mayan villages in Mexico. The observation fit scores of killings in L.A. that cops chalked up to “female problems.”

The smallest ghettoside spat seemed to escalate to violence, as if absent law, people were left with no other means of bringing a dispute to a close. Debts and competition over goods and women— especially women— drove many killings. But insults, snitching, drunken antics, and the classic— unwanted party guests— also were common homicide motives. Small conflicts divided people into hostile camps and triggered lasting feuds. “Grudges!” Skaggs would exclaim: to him the word summed up scores of cases. Every grudge seemed to harbor explosive potential. It would ignite when antagonists met by chance in the streets or in liquor stores. Vengeance was a staple motive. In some circles, retaliation for murder was considered all but mandatory. It was striking how openly people discussed it, even debating the merits from the pulpit at funerals.

Professor David Kennedy, who worked on the ground with the police implementing anti-crime programs, noted in his book Don’t Shoot that most killings were not related to the drug business:

Nearly 60 percent of all killings happened in or near a street drug market. Despite the super-heated street drug scene, only about 20 percent of killings had to do with drug business; the usual beefs, vendettas, and respect killings were the order of the day.

Now 20 percent of the killings being related to drugs is not something we should belittle. But it also means that drug legalization is not going to be some magic cure to the problems of the ghetto.

And there are actually ways drug legalization could make things worse.

Jill Leovy explains that sometimes drug crimes are used as “proxy crimes” for more violent offenses. The police prosecute the proxy crimes because they cannot get witnesses to talk about the other offenses:

The drinkers saw Coughlin and ran. He chased them. One was in a wheelchair. He rolled away with short, strong bursts. Coughlin said he saw the wheelchair suspect toss a bag of marijuana. He was hoping to find an illegal gun. Coughlin didn’t care about the marijuana. For him, and many of his colleagues, drugs were just a pretext to stop, search, and arrest gang members suspected of other, unsolved violent crimes.

This was how Coughlin did his job on many a night. Coughlin couldn’t do much about all the shooters in Southeast who got away with it. But he could enforce drug laws, gang injunctions, and parole and probation terms relatively easily just by driving around and making “good obs”— good observations, cop lingo for catching, at a glance, a bulge under a shirt, a furtive motion of hands. A chase might ensue, and sometimes ended with the cops shutting down whole neighborhoods as the LAPD “airship,” or helicopter, thumped overhead. Coughlin took extra risks to get guns — this was the gold standard.

Coughlin’s methods were guaranteed to look like straight harassment to those on the receiving end. After all, how important was a bag of marijuana in a place where so many people were dying? But Coughlin’s motivation wasn’t to juke stats, boost his department “rating,” or antagonize the neighborhood’s young men. He had seen the Monster, and his conscience demanded that he do something. So he used what discretion he had to compensate for the state’s lack of vigor in response to murder and assault.

This practice of using “proxy crimes” to substitute for more difficult and expensive investigations was widespread in American law enforcement. The legal scholar William J. Stuntz singled it out as a particularly damaging trend of recent decades. In California, proxy justice had transformed enforcement of parole and probation into a kind of shadow legal system, sparing the state the trouble of expensive prosecutions. State prisons, already saddled with sick and elderly inmates, were all the more crammed as a result.

But in the squad rooms of Southeast station, cops insisted that desperate measures were called for. They would hear the name of a shooter, only to find they couldn’t “put a case” on him because no witnesses would testify. So they would write a narcotics warrant— or catch him dirty. “We can put them in jail for drugs a lot easier than on an assault. No one is going to give us information on an assault,” explained Lou Leiker, who ran the detective table in Southeast in the early aughts. To them, proxy justice represented a principled stand against violence. It was like a personalized imposition of martial law.

That’s why Coughlin went in hot pursuit of that pot dealer in a wheelchair. Coughlin caught and searched the man. He found a faded old revolver.

Coughlin understood why the man was carrying that gun. Black men who lived in Watts were in constant danger. Those who sold drugs were in more danger. And those who couldn’t run away? One could almost say it was a matter of time before serious violence visited a drug dealer in a wheelchair. In fact, a man in a wheelchair from a gunshot injury had been murdered in the Nickersons near the very spot just a few years before.

Obviously this is a horrible system. But when we talk about the problem of drug incarceration, we need to understand the problem completely. If we take away drug arrests as a tool for police, what would we have Officer Coughlin do instead? What is the plan for getting illegal guns off the street, for taking down violent gangs that have scared all the witnesses into silence?

Bloomberg journalist Megan McArdle says that she came to a similar conclusion about drug prosecutions after observing court cases:

We’re hampered by the rampant perception that all we need is to wise up and stop incarcerating people for simply possessing drugs, something many of us feel shouldn’t be a crime at all and certainly shouldn’t merit prison time. At the event I attended, someone who has actually studied the matter closely pointed out what experts know and most journalists apparently don’t: Relatively few people are in prison for simple possession or for other minor crimes. The shock in the room was palpable.

I wasn’t shocked, but not because I am somehow immune to this delusion. Rather, I had it stripped from me a few years back, when I went to Hawaii to report on its innovative probation program, Hawaii’s Opportunity Probation with Enforcement. HOPE has sharply reduced the number of people who “flunk” probation and end up with long prison terms. To study it, I sat in a courtroom for a week and actually watched how the process worked. I’ve written about it in my book, but here’s something I didn’t write about: how shocked I was by the composition of the docket. I’d been expecting a lot more simple possession – and a lot less robbery, assault, domestic violence and burglary.

Even the most dedicated anti-incarceration activist would call these “real” crimes, and they were numerous. Even the most dedicated advocate of drug legalization – such as, say, me – would have to admit that a large percentage, perhaps the majority, of the people who committed “real” crimes had some sort of a drug problem – not as in “smokes more weed than they really should” but as in “admitted to the judge that they had smoked crystal meth recently enough to flunk the drug test they were about to be required to take.”

City Journal looks at the overall statistics and notes that the idea of a large number people being incarcerated for simple possession is a myth:

Less than 1 percent of sentenced drug offenders in federal court in 2014 were convicted for simple drug possession, according to the U.S. Sentencing Commission, and most of those convictions were plea-bargained down from trafficking charges. Even on the state level, drug-possession convicts are relatively rare. In 2013, only 3.6 percent of state prisoners were serving time for drug possession, often the result of a plea bargain, compared with 12 percent of prisoners convicted for trafficking. Virtually all the possession offenders had long prior arrest and conviction records. The meth users that Tustin, California, police officer Mark Turner encountered in his undercover narcotics days were sentenced to drug classes. “Then they would skip out of the classes and always re-offend,” he says.

Obama and other incarceration critics have targeted mandatory minimum sentences for federal drug crimes. The current penalty structure is hardly sacrosanct, but mandatory sentences are an important prosecutorial tool for inducing cooperation from defendants. The federal minimums are also not lightly levied. A ten-year sentence for heroin trafficking, for example, requires possession of a kilogram of heroin, enough for 10,000 individual doses, with a typical street value of at least $70,000. Traffickers without a serious criminal history can avoid application of a mandatory sentence by cooperating with investigators. It is their choice not to do so.

When President Obama commuted the sentences for a batch of prisoners in federal prison, 25% had gun crimes on their record. Here is an example of a prisoner released:

Felon in possession of a firearm and ammunition (five counts); possession of a firearm in furtherance of a drug trafficking offense; possession with intent to distribute more than 50 grams of a cocaine base (crack); possession with the intent to distribute cocaine; possession of crack cocaine; possession of marijuana.

If there are so many people in federal prison for petty drug dealing, why cannot Obama find any of them to release, instead of releasing those trafficking drugs while armed with a weapon?

I also think that we may have the problem of drug enforcement backwards – rather than the predominantly black ghettos being policed too harshly, they may be policed too lightly.

In my white suburban town growing up, if a group of young men were to set up an open air drug market on our police corner, they would be reported, shut down, and sent to juvenile court within days, probably hours. It would be unthinkable that open air dealing would be tolerated.

Yet in many ghettos, these markets are in fact tolerated, with minimal punishment, for long times. For illustration, here is a scene of a drug market in Cincinnati:

The guy in the No. 9 baseball jersey hangs out by a beat-up LTD on a steep Mount Auburn street. A tattooed man in a do-rag pulls up in a Jeep. He’s an undercover cop and he buys 20 bucks worth of crack. He drives off; uniformed officers move in…Officers tackle him a block later….

Jaquay Milhouse, 23, will go to jail this time, sentenced last week to 60 days behind bars for selling drugs to a cop. It’s the first time he’s been sentenced to jail, despite five earlier convictions for possessing small amounts of marijuana…His story is not unique.

That’s just talk to officers, who say the revolving-door punishment makes for an unwinnable game. They know the dealers and users they arrest today probably will be back tomorrow, selling the same drugs and prompting the same neighborhood complaints.

“The dopers know it, too,’’ says Sgt. Rick Lehman, a 26-year veteran who supervises the District 4 Violent Crime Squad. ”They’ll say, `I’ll be back out in a couple hours.’ "

Note that last sentence – when the arrest is made the person comes right back out onto the street. There are arrests, but no actual punishment. Thus, despite the appearance of policing, no actual law enforcement is taking place. At the very least – why not give these dealers 20 hours of community service? And even Singapore style caning would be better than jail time that takes people away from jobs and family.

David Kennedy noted in Don’t Shoot that the lack of enforcement means that the people on the street lose respect for the police:

The streets got away with almost everything they did, which meant that if they took the woofing [by the police] seriously, the natural conclusion was that the cops were letting them get away with it, which was exactly what a lot of them did think.) Our promises had to be true. It became a central tenet of the new thinking: Never write a check you can’t cash.

Later Kennedy notes that even the drug dealers are miffed that the police allow them to exist. They are so miffed that they actually think the cops are conspiring against the community for their own dark ends:

One block, over five years, logged five homicides, fifty-five robberies, and eighty-eight assaults. In 2001, the Terrace and Bedell intersection alone produced six homicides. RIP graffiti chalk the sidewalk and walls. An ABC Primetime crew filmed a dealer on Terrace taking delivery of Chinese food; he ordered, paid off the driver, and had dinner right there on the corner.

They found a Terrace and Bedell so alienated, so detached, that it no longer knew, if it ever had, what the police could and couldn’t do, in a way that fed directly back into the conviction that law enforcement was conspiring against them. “They thought we could just grab people off the corner,” Reiss said. It was a perfect storm of misunderstanding. The cops are all-powerful, they do whatever they want. The drug dealers are standing there in plain sight ordering Chinese food, so the cops could just grab them, but the cops aren’t just grabbing them. Therefore the cops want them there, therefore the cops are behind it. Hasn’t it always been thus?

What seems to happen is that these drug markets are tolerated for months or years, with minimal punishment to the dealers. They get arrested, processed, and come right back on the street. But open air dealing breeds crime. Rival gangs get in turf wars and shoot each other. Families beg the police and mayor to do something. They beg the police to get rid of the gangs. And eventually they take action.

For instance, when Corey Booker was elected mayor of Newark (a black man in a majority black city) he promised residents that he would clean up the disorder. After his election officials credited the first homicide-free month in 44 years to ‘large-scale’ drug sweeps:

When the clock struck midnight on April 1, Newark reached a milestone: its first homicide-free calendar month in 44 years. While police and city officials say that’s a solid benchmark, they say there’s more work to do.

McCarthy credited large-scale sweeps at some of the city’s most notorious drug strongholds — in one case nearly 150 arrests during a six-month operation — as well as increased police presence on city streets at night with helping keep the city without a homicide from Feb. 28 through tonight.

City officials also said community safety caravans as well as the installation of the ShotSpotters gunshot detection system and surveillance cameras in high-crime neighborhoods has helped.

“The reason this is happening is because of the takedown at (Garden) Spires, the reason why it’s happening is because of the takedown at Stephen Crane, Pennington Court,” McCarthy said, referring to several housing projects known as havens for drug dealers. “Step by step, there’s a systematic clean-up of all these traditional locations …We’re attacking and holding on to those locations.”

McCarthy said the arrest of 149 suspected drug dealers at the Garden Spires apartments during a six-month undercover operation may have helped stifle the homicide rate by preventing narcotics disputes that often turn deadly.

In other words, the drug arrests were used as a way to take down a hot spot of violence and crime.

The reason why black men are getting arrested for drug crime (as opposed to white, Wall Street cocaine dealers), is not because white America is racist against black people. It is because open-air dealing in the ghetto is associated with shootings and crime and because mothers do not want their kids walking by drug dealers. The black residents and black mayors often want the police to arrest the dealers and get them off the street.

Remember the infamous 1986 Act that imposed much harsher penalties for crack dealing? “Representatives Charles Rangel and Major Owens, two black liberal Democrats from New York not known for their reluctance to play the race card, led the fight to impose the differential…11 of the 21 black lawmakers serving in Congress in 1986 supported the new law.” (source) They wanted the penalties because crack was ravaging black neighborhoods.

In Ghettoside, Jill Leovy tells the story of one black, middle-class officer who does the unthinkable – he decides to move to the ghetto himself, live there, and raise his family there:

Not that there weren’t difficulties. When the Tennelles first moved in, an apartment building down the street was a hub for drug deals. A dealer once stood in Tennelle’s driveway and conducted a transaction as Tennelle, who had served briefly as a narcotics cop, was mowing the grass a few feet away. Perhaps the dealer had a faulty antenna for cop detection; more likely he was caught slippin’ because it had never occurred to him that a cop would live on his street. Tennelle called 911 and had him arrested.

Later, Tennelle wrote a 3.18 narcotics report on the building and offered his home as an “OP,” or observation post, and the problem swiftly abated. After that, the Tennelles enjoyed the area.

Rather than have too much enforcement of drug law in the inner city, we may have to little. Why can’t police respond everywhere the way they responded when officer Tennelle moved in? Why can’t the police crack down on open air dealing completely, rather than waiting for months until a gang war breaks out before getting serious?

The paradox is that lax law enforcement can actually create more incarceration. If you allow crime to fester, it becomes more serious, and you ultimately have to put more people in prison, for longer. By nipping things in the bud, you can ultimately have less total punishment. Unfortunately, our public discourse on this seems to be headed the wrong direction, and I fear we will continue to make the problem worse, not better.

From a crime standpoint, we have the worst drug policy. Either full legalization would be better, or much more consistent and stronger punishment of open air dealing would be better. Which one is preferable is a separate question (I have my own thoughts here).

It is also insane that a drug dealer (like Jaquay Milhouse metioned earlier) can get five convictions that convey no jail time but that prevent him from getting a job. Thus as a result of getting caught dealing drugs, he gets no punishment, he just gets a scarlet letter preventing him from doing something other than dealing drugs. This is bonkers. It would make much more sense to have a stiffer up front penalty, but then expunge the record entirely, and enable him to enter legitimate workforce.