PROFESSOR DASH: In 1997, the "American Lawyer" named him one of the top 45 public sector lawyers under the age of forty-five. He is the author of "No Equal Justice: Race and Class in the American Criminal Justice System," which was named best nonfiction book in 1999, and the best policy book by the American Society of Political Science.
According to the United States Public Health Service, unlike most other things in our society, illegal drug use is evenly distributed by race. Blacks are 13 percent of the general population. They're about 14 percent of illegal drug users. Whites are about 70-some percent of the general population and 70-some percent of illegal drug users.
There are no direct statistics on drug dealing, but most users say they get their drugs from same race dealers, and so that's likely to be evenly distributed as well.
Yet enforcement of the drug laws is, by far--is far from evenly distributed. Blacks, as I said, are 14 percent of illegal drug users, yet every year, they are 35 percent of those arrested for drug possession, 55 percent of those convicted for drug possession, and 74 percent of those sentenced to serve time for drug possession.
So for a crime they commit at a level proportionate to their representation in the population at large, blacks are incarcerated at a rate nearly six times their representation in the population at large.
At the same time black communities, especially inner city black communities, suffer most from the consequences of illegal drug use. Crack houses, open-air drug markets, street violence associated with drugs are a common feature of inner city communities. They are not a common feature of the suburbs, although I understand that Howard Safir's trying to change that.
And so the--there, there's a very--there's a--this--the, the subject that this panel deals with is how do you respond to that paradox, that African Americans are, are victimized both by drugs, and by the War On Drugs?
We're going to begin with a short clip from the upcoming documentary on the War On Drugs.
We're going to begin with Zachary Carter, a graduate of Cornell and NYU Law
School. He has spent the bulk of his career in law enforcement.
First, comparing the social cost, that is, the disparate incarceration rate of racial minorities, the length of time that those persons are incarcerated, the social consequences to their families of their incarceration, and measure that against the success or failure of our current drug strategy. And then we also compare the social cost against the cost and harms of use.
Even when you ask the right questions, I think the answers in this field are very difficult. They're difficult, I think, because of the limits of information. They're difficult, I think, in the main, because the discussion is hopelessly politicized. That they--that there are topics of conversation that we really need to seriously discuss, that are considered to be taboo, at least in the political arena, which is why we have not been able to come up, in my view, with a, a coherent strategy for dealing with the problem of, of--of substance abuse.
The one sense I have had, from the time that I started as an assistant United States attorney in 1975 in Eastern District of New York, a district that covers Brooklyn, Queens, Long Island and Staten Island, so it's part inner city and part suburban--from the time that I started as an assistant to the time that I became United States attorney, from 1993 to 1996, I've certainly had the sense that, that as a nation on drug enforcement, that we've been running place.
When I was an assistant United States attorney, I remember prosecuting a case involving one kilogram of cocaine. That was a "big deal" in our office in 1975, and I had to be a relatively senior assistant United States attorney to handle a case involving one kilogram of cocaine.
By the time I became United States attorney in 1993, one kilogram of cocaine was approximately 99 kilos below our threshold limit for taking a case into the federal system, and it cost a heck of a lot less on the street.
There did not appear to be a targeted effort to focus on neighborhood level
distribution organizations. There appeared to have been a, a faith, however
unjustified, that simply by making high volumes of--high, high numbers of
arrests, that, somehow, the drug problem would be, would be adequately
addressed, and when I say the "drug problem," I mean drug distribution as,
as--as an enterprise.
In that capacity, he declared the Federal Sentencing Guidelines, which many see
as part of the problem here, unconstitutional. His views were not accepted by
higher authorities and--but he has continued to criticize their constraints on
sentencing discretion of federal judges.
So it--let's be honest with ourselves. It is a social problem, very much like alcohol and tobacco, and so I would say that the issue is sort of this way. Has the criminal pro--prohibition on drugs, the way we've decided to use the law to deal with this problem, has it resulted in social justice? Has it been fair? Has it strengthened the society? Has it been just? That is, have the means justified the ends? And of course you probably recognize already that my answer to these questions is no.
As far as fairness is concerned, the moderator has already explained to you, and give you the statistics with which--establish that the administration of this policy has resulted in Jim Crow justice. Now that's a very deep and ugly wound to our body politick, and in our effort to have a society that's fair to all races. And the statistics are, have been cited to you and I won't repeat them, except the obvious fact is that the results are skewed to the detriment of our black citizens, and the result is that one in every three black man over the age of 18, in the United States, is in the courts of--the criminal justice system. One out of every 180 white men.
So that tells you, flatly, what the situation is. You've also heard from the moderator that this isn't a question just of enforcement. This is a question of law. This is something that Congress has done. And you've heard also that Congress was told, with respect to the disparity between crack and cocaine, that disparity of a 100 to one, which is irrational on any basis--that that disparity was called to--the inequity of that disparity was called to Congress's attention by the Sentencing Commission itself, and made a recommendation. Congress refused to act.
It's also, I think, obvious, that our whole system--if you look at the panel that we have just heard in a, in its charitable way--in a charitable way, you're using the criminal laws to sweep people up to deal with a social problem, and of course imprisonment is a very serious and difficult undertaking. It's the harshest penalty we have. It rips apart families. It destroys jobs. It creates prejudice. It affects communities. The reality of this penalty of imprisonment has to be faced, and faced honestly.
So my answer to--my first question is, Is it fair? No; demonstrably. Has it strengthened the society? Again I say no, it has not. We have our constitutional rights. It's the bedrock of our society. We all believe in those rights, and yet those rights have been weakened as a result of the effort to criminalize the use of drugs. Post-conviction bail. Attorney-client relationships. Forfeitures. The changes in Fourth Amendment jurisprudence.... You can get a search warrant on an anonymous tip of an unreliable informant. Warrantless searches of barns. Lowering the ceiling. The Supreme Court's gonna have a question about thermal searching in its new term, and of course search warrants issued by officers in good faith.
So some say this is the drug exception to the Fourth Amendment. And on top of that, of course, we have to recognize that our police have been corrupted. The fact--today's paper, on the way here, talks about a policeman in New York City laundering a million dollars. And this corruption is coast to coast. I'm sure everybody's familiar with what's happened in Los Angeles.
So what we have, I believe, is a weakening of our institutions, not a strengthening of them.
Well, now, if that's true, is it worthwhile? Have the means justified the ends? Maybe this is Jeremy Bentham, or maybe it's just practicality, or whatever it is. Has it worked? And you've heard the statistics on that. The answer is that the drug use is relatively constant. It hasn't changed since 1990. Maybe there are 3 million hard-core cocaine users, and a million heroin users, but that's a relatively small part of our population.
If our question is the health of our citizens and the cost of the addiction, then look--let's look at drugs, don't demonize them, treat them as the social or health problem which they are, and of course by using the criminal law, we've placed a terrible burden on ourselves.
You've heard, again, the statistics, the 2 million who are presently in jail, and our rate of incarceration. Here we are, in the United States, and we have the highest rate of any Western nation, leaving aside Russia, say 641 people per 100,000 in jail, whereas the Western nations are all under two--two hundred people per 100,000. So--and on top of that, it's costing us what? 30-, 40 million--billion dollars a year to maintain this system.
What drives this is money. What is behind this trade is money, and we ought to
recognize, as Bob Stutman was saying, figure out what the objective is and
eliminate these prices, and treat it as a health problem, end the criminal
prohibition, restore a just society.
Our last panelist is Mayor Kurt Schmoke. He's a graduate of Yale and Harvard
Law School. He's most known of course as a tremendously successful mayor of
Baltimore from 1987 to 1999.
I want to come at this in a slightly different way than what we've heard thus far, and, and I ask you to use your imagination for a moment, and I ask you to, to imagine yourself as a, a parent of two children.
One child is a teenage boy. You're very busy people, but you come home one day, and you find out that your son is a, a drug user, and you're very disappointed. The question I ask you is, Is your instinct to call the police and have your son arrested? Or is it to call a health professional to have him treated?
Do you think of him as somebody to be incarcerated for years and years, or as somebody who's made a mistake, maybe bad judgment, but one day he'll do something good, positive, maybe even run for President?
Do you impose family sanctions there, or do you seek out the criminal justice sanction for your son, your teenage son? And while you're thinking about it, if you hear about the son of some other person across town, who you don't know, and you hear that person is also a substance abuser, do you think, first, that that person should be arrested or that person should be treated? That's your teenage son.
Now you have a daughter. She's college age. She's a good student. Goes off to your college, and you're very proud of her.
She falls in love with some older guy, thinks he's a graduate student, and living off-campus, and, in fact, he's not only not a student but unbeknownst to her, he's running a, a drug operation, a multistate drug operation. She falls deeply in love with him. She actually becomes abused, a victim of domestic violence. According to the police and prosecutors who eventually get him, that she neither takes drugs, she doesn't benefit from the sale, she doesn't, in any way, profit from this.
But what she does do during the course of her relationship with this guy, she, she puts--he buys a car which she allows him to put in her name, buys an apartment which she allows to put in her name, and she sends--takes some money, drops off some money to a lawyer on his behalf. Prosecutors come in and they finally charge the--this guy, this boyfriend of hers with running a, a drug operation, and even with murder. And they decide to charge her with being a conspirator. But she gets counsel and she plea bargains, and, and decides to testify against this guy, and tells the Government all that they want to know about him, and he is convicted.
And then she comes back into court, thinking, well, I've--you know--I had this bad relationship. I will now, hopefully, get leniency by the court. But instead of getting leniency, your daughter gets sentenced, because of mandatory sentencing laws, to 24 and a half years in prison.
In terms of strategies and implementation, it appears that our drug war really fits what Congressman Barney Frank has said, that it was not racist in its intent but it has become, in implementation, an enforcer of racism. It is, as Judge Sweet mentioned, the "new Jim Crow."
And so, in my view, we do need to have a War On Drugs, but the War On Drugs should be primarily--and I emphasize this--primarily a public health war rather than a criminal justice war.
I would propose that in terms of common ground strategies, that we invest in the treatment programs, we eliminate mandatory minimums, we permit record expungement for youth offenders, we eliminate racial profiling, pursue alternatives to incarceration. But I tell you, ultimately, my personal view is that we're not gonna win this unless we pursue policies that take the profit outta distributing drugs at the street level, recognize that we have to take some emotion out of this debate, help end what I feel is our domestic Vietnam, and listen as people, such as the ones we heard today, talk about this intervention in Colombia, using the terms insane, misguided and fraudulent.
If Congress listened to those gentlemen talk about it in that fashion, why,
other than politics, are they pursuing this misguided strategy?
Can you con--if you're a prosecutor and, and--and you, you know the 14 percent of--that African Americans are 14 percent of drug users and yet they're 35 percent of those arrested by the police and brought to you for prosecution, can you take that into account? Do you have a responsibility to take that into account?
If you're a judge, can you take into account that a per--person sentenced--up
for sentencing before you is a young black man from an inner city community
with ver--very few options as opposed to--or as compared to a white, affluent,
suburban young man? Is--are there things that can be done within the system by
those who are implementing the system, prosecutors and judges, to respond to
With respect to whether or not you can make a race-conscious decision in terms
of enforcement, in order to, to kind of bring fairness back in, into the
system, what I suggest is that what a prosecutor can do, and what law
enforcement officials generally should do is to take into account--to have in
the back of their minds the incredible social cost of the, the--the use of our
laws at their extreme, so that we hesitate to use an enforcement strategy that,
without purpose, sends a young black or Latino person to jail for an inordinate
period of time, if not more important law enforcement objective is going to be
I took into account the circumstance of a defendant, history, background,
family, et cetera, et cetera, role in the offense--all of those, and tried to
achieve a just result, and those sentences, I think--I am absolutely persuaded
from my own point of view, that those sentences were far more just than the
grid, and the arbitrary system which we have today.
When I was state's attorney, we seized a lotta vehicles as it related to, to drug offenses. Somebody described me once as the largest used car dealer in town, and, and--and so we were, we were really tough on that, and from a local point of view it is your priority in going after trying to make safe neighborhood. You really don't have a lotta discretion to worry about what, what the, the impact of all this, this is in terms of racial disparity.
You step back, though, you become the mayor, and you're looking at a variety of situations and you're saying, wait a minute, I've got--yeah, I've gotta keep this neighborhood safe, but I'm also disrupting all these families. I'm taking away this guy's right to vote. I'm--I forget this man is not gonna be able to come out and work. I got a lotta prisoners that are gonna come back into my community. I've gotta do something with the broader policy. I gotta do something that this, this broader--and I got AIDS because a intravenous drug users.
And so, at some point, you have to both focus in on the day-to-day neighborhood situation and try to do something about the broader national policy, and that's what we tried to do.
So what I'm si--simply suggesting is that there's some areas here of common ground, and if we can agree to forget the labels, and, and go together and talk to these--the, the national leaders--and it's gotta be at, at--at Congress, to do this, and say, folks, look--there's areas here that are doing much more harm than good.
But, but there are areas that are in need of reform, and if you listen to us, listen to the DEA agent in the field, listen to the police commissioners and correctional people who are saying we can't prosecute our way outta this crime.
We're just saying instead of having a--this huge multi-billion dollar budget
that goes, now, two-thirds or more to law enforcement, rather than the
treatment, let's change, let's change the allocation here and change some of
the policies, and look at it as a health approach...we would have not only a
safer country, not, not to play on your name, but, but we would have--we would
have a more just country, and that I think is what we're looking for.
So I think we really need to get these facts and, and ideas out into the
community, and have community support to--before we're going to get political
They have brought crime down, made it safer for people in those communities,
and so tho--for those of you, particularly Mayor Schmoke and Judge Sweet, who
seem to be arguing against a law enforcement response, how do you respond to
those members of the community?
These are the same communities, though, that--whose residents, particularly during the late 1980's and early 1990's, were having to counsel their young children to crawl beneath their window sills in order to avoi--avoid random gunfire that was at--was the product of warring crack gangs competing for turf.
So we were ta--we're talking about addressing--we're talking about two parallel
dis--uh, uh, uh--disparate impacts on African American and Latino communities.
The effect of, of drug enforcement policy and the effect of drug trafficking,
and the, the issue is, is how do we keep these things--you know--as Kurt says,
So it's, it's--it's crying out in a lotta different directions, and what I
think--Judge Sweet hit it right--what they're just crying for, ultimately, is
justice, and justice includes the reduction of drug impacts in their community
and the disproportionate negative impact of law enforcement strategies in the
Just a political matter, now, as Zack said, unless we push it up there, the
candidates, just looking at the numbers, are gonna say things are safe in, in
the, the big cities now, and I don't worry about these millions of people who
are incarcerated. But things are safe, it's not a political issue, so we'll
I don't think they want--people just don't want to hear that. And the other
easy assumption is that drugs are somehow demonic, and that drugs are
responsible for all of this, and it isn't really a human problem, it's just
drugs. They won't view it as a mind-altering substance like alcohol or
whatever. So I think, politically, I would like to say I, I think that we
should have a campaign that talks about justice, I mean, in the large sense,
not just the mechanics, but a just America. And, regrettably, I, I think it's
politically unpalatable today.
You know, I've got to stop this legalized. I'm an abolitionist. I'm not a legalizer. However, that's an easy assumption to make. I'm, I'm not sure that it's true, because drugs are generally available today. So I'm not sure that the--that there won't be an increase, and there is this question of a glamorization, and, and the edge is perhaps taken off of marijuana when you see it portrayed in an everyday setting in drama, or movies, or whatever.
So I think--but I think that contrary to--is that bad or good? Well, I say it's good because we've got to look at this for the honest problem that it is. It is a problem just like alcohol.
Look--the answer is tobacco. Tobacco is the most addicting of all the drugs, and drug--and that drug usage has been cut, dramatically, because people now understand the risks, and America is quite unique in this regard.
So, you know, if, if we can get the facts, I think the people will respond.
That is, that we're, we're fighting a war on alcohol and tobacco in the United States, and even though tobacco by--the Surgeon General says it kills 400,000 people a year--we've chosen to fight that war as a public health war. Education, body bag commercials now, a real tough, hard message to kids--this is bad for you, it hurts your body. No glamorization. Don't allow ads now, don't allow this stuff in your, your, your schools. That kind of--those kinds of public health messages can continue, whether there's a criminal sanction or not.
And so I guess I just--my view is that taking a, a--the criminal sanctions away
from it doesn't necessarily mean that we are now announcing that this is a
positive good. We will continue to fight substance abuse, but we will all
substances of, of abuse through a public health approach.
You don't have those same kinds of excuses when it comes to using marijuana.
No one says--oh, remember the old cigarette commercials, "Just for the taste of
it"? Nobody says that about marijuana consumption because people have to
honestly acknowledge that they're using it as a mood-altering substance. It
seems to me that the question that you have to ask about marijuana--and I,
frankly, don't know the answer to it, but I think it's worth investigating--is
whether or not there is an element, there is an extent of marijuana use that
also is no more harmful than moderate use of alcohol. If it is true that there
is a level of consumption that, that is the equivalent of moderate consumption
of alcohol, then it seems to me that you draw different conclusions about
marijuana use and where it should fall in the scheme of things with respect to,
And I said Mis--Mr. President, you've done a remarkable job in fighting tobacco
abuse, and you gotta be applauded, and it's a major public health problem. But
ask--answer me this. If I'm holding, in one hand, a substance that your
Surgeon General says kills 400,000 people a year, and in my other hand a
similar green leafy substance that the Surgeon General said there's no known
recorded deaths from the simple ingestion of it, why do we fight a war against
this one as a public health war, and a war against this substance as a criminal
justice war? And as a simple question. And, and you know the answer--the
bottom line to the answer is culture, history, and politics.
Why is a 50-year-old African American male, who has dedicated his life to being
part of the system, should I believe, at this particular point, that any good
is going to come, and any change is going to be made?
You know, it--they're listening--they're heeding that signal. They understand
that just by selling tax relief, it's not gonna get them very far. I think that
on this issue, in terms of having a balanced approach to, to--to drug
enforcement, to dedicating, at, at the very least, equal resources to, to
treatment, I think that as the public becomes better informed about it, they
will embolden their political representatives to take responsible positions.
The problem of most of our political leaders, as I have seen, is that they have told a different story to the voting public, and they don't know how to get out of that story, and that story has demonized, as you say, Judge Sweet, drugs, and legitimized our present policy.
People like yourselves, and others on the panel, former law enforcement
officers, former police chiefs, DEA agents, who can give an articulate
reeducation of the public, the real story, can lead the public to give the
courage to their political leaders to change policy.
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