The Drug War: Availability and Crime

Read two great bits about the drug war yesterday. First, from a letter by Ronald Shafer in the 12/30/2008 Wall Street Journal:

To believe that legalizing drugs would slash crime and violence is a pipe dream. Does anyone really think that the thugs and killers in the drug trade would suddenly become law-abiding insurance salesmen? Certainly drug addiction should be treated as a health problem. But it makes no sense to expand the availability of drugs that kill and, more often, destroy the futures of tens of thousands of young people every year.

Note the emphasis on availability. Now, from an article about Ecstasy (aka MDMA) the 12/20 Holiday Double Issue of the Economist (p133):

Ironically, once it became illegal, MDMA’s recreational use exploded.

Making drugs illegal does not decrease availability. Instead it has turned our schools into distribution centers. Usage of harder drugs increases because they’re more cost-effective for smugglers. During Alcohol Prohibition consumption shifted from wine and beer to hard liquor for that reason.

Most of the problems related to drugs, including the deaths, come about because drugs are illegal. Crime and violence a pipe dream? Look at alcohol prohibition:

Click on the graph to enlarge it. Do you see the huge drop in homicide after Prohibition ended? Do you see the jump in crime after Nixon declared the War on Drugs? The graph comes from Jeff Miron on Alcohol Prohibition.

What happened to the thugs and killers after Alcohol Prohibition? Apparently they stopped murdering people until the drug war gave them a reason to start again.

Mr. Shafer – I’m sorry your son died as a result of using LSD. But your answer is wrong. There are about 2 million arrests a year now, and 500,000 non-violent drug offenders behind bars. The drug war devastates poor communities, increases crime, and wreaks havoc on Latin America. It also wastes a huge amount of money. And like Alcohol Prohibition, it just doesn’t work. It won’t bring your son back. He died, in part, because drugs are illegal. Keeping them illegal will kill more like him.

The history of Alcohol Prohibition gives us a tremendous lesson. Why do we continue to reject it?

These People: Criminal Justice and the Golden Rule

There’s a term I hear sometimes – these people. It usually comes from a prosecutor or a judge. It happened just the other day. “This is what we have to do with these people.” I distinctly remember hearing it one time from a client. I was visiting him in jail. He said: “You’ve got to get me out of here. I don’t belong here with these people.”

Who are “these people”? The key is that they’re different from us. It’s kind of a good guys vs. bad guys thing, with a little bit of elitism, some tribalism, and a touch of dehumanization thrown in.

Maybe it’s easier to define these people by starting with who is not included. When I hear the term, it is most often in the company of judges and lawyers. So I’m in the clear. Other professionals are safe – doctors and maybe accountants. Government officials, including police, are usually exempt too. Race is a factor, but the majority of these people are white.

The exemption works for many. NY Governor Eliot Spitzer got caught involved with a prostitute. So far he hasn’t even been charged with a crime. NY Comptroller Alan Hevesi was caught stealing over $200K, and he got no jail time. These people don’t get the same treatment.

Bernie Madoff is out on bail. Yes, he had to post $10 million. When “these people” are charged with a crime, the money for bail and for defense lawyers sometimes is vetted to make sure it doesn’t come from inappropriate sources (like the criminal activity). Where did Madoff’s bail money come from? Is there even the slightest chance that his bail money is clean? No. If he were treated like these people, he’d be in jail right now.

Plaxico Burress is a great contrast, facing a minimum of 3 1/2 years. Mayor Bloomberg was out in full force calling for his head:

“I don’t think that anybody should be exempt from that,” Bloomberg said. “It would be an outrage if we don’t prosecute to the fullest extent of the law.” If you don’t go after athletes that would be “a sham, a mockery of the law.”

Why isn’t he going after Madoff? Because Madoff and Bloomberg have been in the same business and social circles for many years. Burress – he’s one of these people. Where was Mayor Bloomberg on Spitzer and Hevesi? Hevesi steals $200K, gets no jail time and Bloomberg is silent. Burress shoots himself in the leg and the Mayor wants 3 1/2 years?

The mentality sustains the criminal justice system. The process is horribly unfair to defendants. People involved in the system would have great difficulty treating their own kind in the way they treat these people. I’ve been a lawyer for 13 years now, and started doing criminal defense about 5 years ago. It is becoming harder and harder for me because the defendants are human. To the extent that their lives are different than mine, it is because I have been so lucky in life, not because they are inferior. It is painful for me to see how our system treats them.

This brings me to the Golden Rule – Do unto others as you would have them do unto you. I prefer a modification of this for the criminal justice system. Suppose you are charged with a crime. Or more powerful, it’s your child. We get many calls from parents distressed over their kid and shocked by how unfair it all is. What kind of process would you want to make sure you and your child get a fair shake? That’s the kind of process everyone should get.

So let’s talk about the process we have now:

Police lie. Not all police, and not all the time, but I have seen so many police officers lie so many times I’m almost getting used to it. What should happen when a police officer lies? If it was your kid they had arrested, and the police officer was lying about what happened, what do you think would be fair?

Prosecutors ignore the lies. In some cases they may even help the officer figure out how best to lie in order to convict the defendant. And judges ignore the lies too. One case stands out vividly in my mind, where the officer mistakenly blurted out something that showed he’d been prepped by someone to lie. When I tried to question the officer about it, the judge stopped me. The prosecutor hadn’t even objected and the judge kept interfering.

So, what process do you think we should have to protect your kid from police lying to convict them?

For starters, let’s require a video camera on every police car. As much as possible, every police encounter should be recorded. This actually does more than protect you and your child from abusive police. It protects good cops from false accusations.

Judges don’t follow the law. The biggest problem I see is a failure to protect defendants’ constitutional rights. Many judges routinely take away the DWI defendant’s license without a hearing – a due process violation. They also disregard the Fourth Amendment when it comes to probable cause. Bail is often set with deference to the prosecutor’s recommendation (instead of the judge’s own determination). The result is excessive bail which intimidates and humiliates the defendant to encourage a plea deal. The true purpose of bail is to prevent the defendant from fleeing, which is really quite rare.

If it was your kid facing the charges, wouldn’t you want the judge to follow the law? Wouldn’t you want the Court to respect constitutional rights?

There are too many crimes. We live in a very complex world. There are so many things going on it gets hard to keep track of it all. Someone fills out a welfare form wrong. A tourist enters the US with too much money. A 19-year-old has sex with a 16-year-old. Smoking marijuana. In some states driving 20 mph over the limit is a crime. There are other ways of dealing with these issues without using the criminal law. So many other countries manage – and have less problems with crime.

The volume of criminal cases makes it harder for defendants to get fair treatment. For those who can’t afford a private lawyer, they get a public defender who has so much going on they can’t devote the necessary attention to each case. The PD walks into court with 100 cases. I walk in with one. The PD can’t possibly provide you with the same attention. We can never completely eliminate this disparity, but we can make it better by not overloading the PD.

Ask yourself – if my kid did that, would I want him prosecuted? I sometimes ask my neighbors something similar. If your kid were caught with marijuana, would you want the cops to arrest him or bring him to you? Almost everyone chooses the latter. Shouldn’t everyone get the same treatment?

Punishments are too harsh. I’m no softie. I’ve had clients who belong in prison. But we are locking up too many people for too long. If your kid was convicted of a crime, you would want a reasonable sentence. So why don’t you want that for someone else’s child? Many convicted defendants suffer from mental health problems. We could do so much more to protect society if we helped them. Putting them in prison doesn’t improve their mental health, and it doesn’t make us safer.

If your kid was guilty, what kind of sentencing would you want? Retribution is a popular approach, but it doesn’t sound as good when it’s your kid facing the time. All of a sudden things like restorative justice and rehabilitation make a lot more sense.

Of course, all of this relates to the title of this blog. We spend tremendous amounts of money trying to lock people up. Our prisons and jails are filled with these people. As a result, many of the children of these people have to get by with one less parent, sometimes two. It would cost less and accomplish more if we sent them to college.

Be wary of “tough on crime” politicians. They want you to think they’re talking about “these people.” Wrong. They’re talking about you and your children. Remember that when yo
u vote.

Bailout Satire

Recession, Crime and Lawyers

A couple months ago on my Albany Lawyer blog I did a post about how difficult economic times are not necessarily bad for criminal defense lawyers.

In many areas of the economy a recession means a slowdown in demand. People cut back on buying presents or on taking vacations. But for defense lawyers the sad truth is that demand can grow.

First, as I mentioned in that post, desperation leads to more crime. For some it’s the paycheck to paycheck life and the challenge of paying all the bills comes to a head. This leads to irrational and dangerous decisions just to keep up – perhaps stealing from their employer or shoplifting from a store. For others the stress causes a different kind of decision, involving illegal drugs or driving home after using legal drugs like alcohol. More of these crimes means more arrests, driving up demand for defense attorneys.

The other side of this coin is the cash-strapped states, cities and towns. Scraping for more revenue wherever they can find it, it’s easy to increase fines and surcharges on “criminals.” I read an article not too long ago that found towns in Massachusetts wrote more tickets in years after the budget was voted down. I’d swear the State Police are writing more tickets recently, perhaps because of NY’s huge deficit.

In the good old days — well 5 years ago — a first-time DWI offender in NY would get a reduction to DWAI and pay a fine of $380 including surcharge. Probably a couple hundred extra on assorted other costs.

Now in many cases there’s no reduction. With the new surcharges and the DMV assessment, it’s now well over $1600 ($500 minimum fine, $400+ surcharge, and $750 to DMV). That’s four times what they would have paid just 5 years ago.

That leaves out the insurance impact. So now the economic rationale for hiring a lawyer is much more compelling.

And if all that isn’t enough, the Albany DA is talking about pursuing forfeiture of vehicles in DWI cases as an “alternative revenue stream.” Soon we will be charging our clients even more money to save their car.

While all these government efforts help make me rich, I’m opposed. For one thing, using traffic and criminal fines to raise revenue is regressive — the burden falls far more heavily on the poor. Most people agree that people with more money should pay more taxes than people with less money. In a progressive tax system, those with more pay at least as high a percentage of their income as those with less.

That’s not how it works in the traffic and criminal tax system. Fines are generally the same regardless of your income. You get tagged going 96 in a 65 and you’ll pay about $1000 (not counting insurance) whether you make $20K or $200K. That’s 5% of the poorer guy’s income and 0.5% of the rich guy’s. Then the rich guy probably hires a lawyer like me who saves him more than $500 of that.

Besides the regressive taxation problem, the real problem is that the so-called criminal justice system should not be concerned, at all, with revenue. It should be about justice. Why do so many forget that?

End Prohibition

I frequently write about how the drug war has failed. Here’s a link to a great article by Ethan Nadelmann about ending drug prohibition. Ethan is the leading voice in the drug policy reform movement, and he’s a good guy too.

Should women who have illegal abortions be punished?

Here’s a link to a great video on YouTube showing anti-abortion protesters answering questions about how women who have abortions should be punished.

A great example of how people need to think through the consequences of the policies they advocate. I’d love to see videos like this about how much people are willing to spend (out of their own pockets) on a variety of things — the drug war, immigration enforcement, maintaining military overseas, etc.

Hyperinflation in a Highly Regulated Economy?

One of the dangers we face now in the US is hyperinflation. Government is spending even more than usual, and it appears that the Federal Reserve is printing money with reckless abandon. Flooding an economy with money like this can cause a hyperinflation – where inflation doesn’t just go up to 10% a year but can be as high as 100%, or in some bad situations over 50% per month.

But I wonder about what would happen in our economy, where a lot of prices are regulated. Consider Medicare. A substantial percentage of spending in health care (which is a big component of the economy) goes through Medicare. Medicare’s reimbursement rates are fixed. They may change every year, but likely do not update more frequently than that. If we start experiencing rapid inflation in other areas of the economy, I don’t think Medicare could adjust more than once a year. And they might be dependent on Congress approving any adjustment. Late in the year hospitals and doctors could end up being paid, in real terms, a lot less than they expected at the beginning of the year.

The same thing is generally true for insurance on the consumer end. Rates and coverage are regulated and generally set on an annual basis — homeowners insurance for example. So you work out a deal with your homeowners insurance to pay a certain amount. Your house burns down and now it costs twice as much to repair it because of inflation. So either the insurer pays twice what it expected, or more likely, your insurance no longer covers the full cost of fixing your house because the coverage is not high enough any more.

My world is closely connected to speeding tickets. Those fines and surcharges don’t change very often. So rapid inflation could be good for speeders and others in trouble with the law. Fees like this charged by governments, federal, state and local, all tend to change slowly. So users of government services might get bargains and governments might face real economic challenges.

Another side of this is employees. In many areas, especially government, employees are paid by union contract or some other fixed schedule. Raises occur annually. Union contracts often run for two or even three years. So if we see high inflation, that would be very bad for unionized workers.

In some parts of the economy we have seen price spikes. Gas was much higher before and I suspect it will go up again. Other commodities, like corn and steel, have become very expensive. Many people were complaining about the price of milk. With the current slowdown perhaps that is getting to be less of a problem. But if our economy does recover (hopefully), and in particular if demand comes back, then prices in areas that are not so heavily regulated could shoot up.

I know hyperinflations have been studied and discussed in economics, but I’m not sure if there’s ever been an analysis of how that would play out in an economy with so many highly regulated pricing systems. There’s a project for some intrepid grad student.