As a nation, we are beginning to change our draconian laws. Seventeen states have developed alternatives to criminalizing at least some drug users. But barriers to change remain, most notably prosecutors across the country who continue to insist on the need for criminal sanctions. In a superb new book Charged, Emily Bazelon tells us why. She shows how county prosecutors, often unconsciously, exploit the Reagan-Bush-Clinton era drug laws described in Michelle Alexander’s The New Jim Crow to their own professional advantage. Mandatory minimum sentencing and “three-strike” laws enable prosecutors to threaten long prison terms, and then coerce a plea bargain agreement that nevertheless leads to incarceration. Can we believe in the fairness of our criminal justice system when 95% of all cases are now plea-bargained, usually in secret? Bazelon is right to focus on prosecutors as obstacles to change. By demonstrating what prosecutors can and will do, she helps us see that we can never end the War on Drugs as long as criminal sanctions against drug use exist. Consider my home state of Illinois. In January, reformers filed HB 2291, a bill that would reclassify low level drug possession offenses as misdemeanors rather than felonies. They did so because felony convictions are far more likely than misdemeanors to wreck lives. The bill got a respectable hearing even as it was opposed by the Illinois States Attorneys Association, composed of county prosecutors. Why? The states attorneys argued that only with the threat of felony sanctions can they force drug users into treatment. In other words, society needs criminal sanctions to keep people from becoming criminals. This view sounds illogical, and it is. It also contradicts convincing research that prison sentences do not reduce drug use. In fact, people who go prison once are more likely to go back. In 2015, the Illinois State Commission on Criminal Justice and Sentencing Reform found that “long sentences have not had the desired deterrence effect, but have consequences that can be disproportionate and counter-productive.” If incarceration does not deter drug use, is it at least effective as a threat against those who might not otherwise belong in prison? Prosecutors and judges use it that way, often stipulating that charges or convictions will be set aside upon successful completion of treatment. This, too, often does more harm than good. Since the possibility of treatment is not widely available for those who need it, many will, in fact, end up in prison solely for this reason. Further, using prison as a threat ignores the possibility of relapse, at which stricter punishment will kick in. Criminal penalties stigmatize those who use drugs so that they avoid treatment they might otherwise seek. Finally, programs that divert individuals too often engage in “skimming,” offering treatment only to the “easiest” cases. It will be a tough to convince prosecutors not to oppose HB 2291 in Illinois and similarly compassionate programs in other states. When I asked Bazelon about this last week, she commented, “Oh, we charge people with crimes, so we can coerce them into treatment? That’s not what the criminal code is for.” We should be profoundly grateful to Emily Bazelon for helping us to understand prosecutorial behavior. But we must go further even than she takes us. As long as a drug possession is a crime, the justice system will harm people who do not deserve to be treated as criminals. At the end of the day, decriminalizing all drug use is the only sane and decent path. Rev. Alexander Sharp, Executive Director
Mass incarceration didn’t happen overnight. Since 1980, the prison population in the United States has increased by more 500 percent, and only in the last few years has the number of people imprisoned at either a state or federal prison leveled off. There is certainly enough credit to go around for the rapid expansion of America’s incarceration system. Between the War on Drugs policies of the seventies and eighties and the “tough on crime” initiatives of the nineties, the blame is largely placed on policy makers, and with good reason. But in her recent book, Charged: The New Movement to Transform American Prosecution and End Mass Incarceration, journalist Emily Bazelon asks us to shift our gaze from the people crafting the policy to the people enforcing it: prosecutors. Most people imagine the court system as being a triangle in which prosecutors and defenders are, as Bazelon writes, “points… on the same plane, with the judge poised above them.” The evidence laid out in Charged shows that this is clearly not the case. Prosecutors play a crucial role in determining what crime a person will be charged with when they are arrested. This decision is largely arbitrary, but it can mean the difference between a multi-year prison sentence and never having to spend a night behind bars. Prosecutors also have control over the other two most crucial factors that will determine whether and for how long a person will spend time in prison: plea deals, and bail. Bazelon points out that by demanding excessively high bail (a point on which judges virtually always defer to the prosecutor), prosecutors can push somebody to plead guilty to a crime they didn’t commit. As a result, the number of people who never get their day in court is staggering. What is most troubling about the work of prosecutors is the adversarial role they take against the defense in criminal cases. Despite how they are presented on TV and in movies, the goal of prosecutors shouldn’t be winning cases, but rather seeking truth. Yet when prosecutors are rewarded for winning cases, and are trained to view defendants as the enemy, they become willing to subvert justice in pursuit of victory. Sometimes this effect is subconscious; Bazelon describes the “tunnel vision” that prosecutors get as they become unwilling to examine evidence that could exonerate a defendant. This psychological effect is reinforced by the culture of prosecutors and district attorney, and the politicization of their jobs. If a prosecutor lets somebody off with a light sentence and they reoffend, it could destroy their career or cost them reelection. Better, it seems, to err on the side of overcharging. Often, however, prosecutorial malfeasance is more direct and deliberate. Charged goes into detail about the Brady rule, which requires prosecutors to share evidence beneficial to the defense. That was not always mandatory, and the lengths to which prosecutors go to get around the Brady rule is astonishing. If Charged simply rattled off statistics about how prosecutors stuff prisons with people who may be innocent, it would be sufficiently damning. But it is Bazelon’s journalistic abilities and storytelling prowess that elevate it to a truly haunting call to action. The book’s throughlines are two stories that reveal the two major problems with America’s prosecutorial system: one exemplifies the structural flaws of a punitive institution that is unforgiving and arbitrary; the other is a horror story of an overzealous prosecutor who will go to any lengths to secure a conviction. Kevin is a young black man living in a Brooklyn public housing project who took credit for possessing a gun as a way to protect a friend. The prosecutor handling the case had complete control over whether the state charged Kevin with criminal possession of a weapon in the second degree (mandatory minimum sentence three and a half years), third degree (two years), or fourth degree (a misdemeanor, no jail time). Bazelon follows Kevin through the kafkaesque New York City gun court that is meant to expedite these cases, but instead merely strips nuance from complex situations. Through the youth diversion program YCP, Kevin is allowed to stay out of prison, but the lengths to which he must go to appease judges and, more importantly, prosecutors, is absurd. Constantly forced to toe the line and with the fear of a lengthy prison sentence hanging over his head, Kevin’s case stretches on for years. Noura, by contrast, is a white teenager in Memphis, who becomes the target of District Attorney Amy Weirich. After her mother is found murdered, Noura becomes the only suspect, despite nothing but circumstantial evidence tying her to the case. Weirich’s methods are ethically and constitutionally dubious, showing that she prioritizes defeating Noura in court over finding out who killed Noura’s mother. As Bazelon shows, this behavior is not anomalous, and not only is it rarely punished, but it is often rewarded. The stories that unspool in Charged—and the data behind them—reveal just how broken our criminal justice system is. But while Bazelon offers no happy endings or tidy resolutions, she does show the promise of a new generation of District Attorneys determined to reform the prosecutorial landscape. Winning elections on waves of support, progress has already been made in Chicago by Kim Foxx, in Philadelphia by Larry Krasner, and in other cities around the country. Every proposal by these firebrand reformers is met with resistance by a system designed to defend the status quo, but while progress is slow, they are already making a difference.The prosecutorial system is deeply ingrained in America’s courts, and the Supreme Court has given District Attorneys stunning amounts of power and leeway in how they handle cases. In Charged, Bazelon lays out the facts unflinchingly, but also offers a way forward, as well as realistic alternatives that can drastically reduce the prison population without sacrificing public safety. Bazelon’s book is more than an indictment of a dangerous and broken system, it is a call to action that nobody who reads it will be able to resist. Tom Houseman, Policy Director
One of the greatest risks for heroin users is that, very often, they do not know exactly what it is they’re injecting. This danger is a direct result of prohibition, since there are no regulations for drugs sold through a black market. Very often, heroin is laced with fentanyl, an incredibly potent opioid. Users who are unaware of the potency of their purchase risk overdosing and dying. Not surprisingly, a report from earlier this year stated that “nearly half of opioid-related deaths in 2016 involved fentanyl.” Fentanyl is one of the greatest dangers facing those who use heroin or who are struggling with opioid abuse disorders. Unfortunately, the response from policy makers and law enforcement has been to double down on the strategy that has fueled the failed War on Drugs: instead of helping users, they want to punish dealers. In Florida, a law went into effect last year that will allow prosecutors to charge dealers who sell heroin laced with fentanyl with first degree murder. Less than a month ago, Rhode Island followed suit, with a piece of legislation titled “Kristen’s Law.” This strategy has also been embraced by President Trump, calling for the death penalty for drug dealers. “If we don’t get tough on the drug dealers,” he said, “we’re wasting our time.” What Trump and the legislators behind the laws in Florida and Rhode Island seem to be willfully ignoring is that the War on Drugs has always been about being tough on dealers, as well as users. The idea that has driven policy is that aggressively punishing drug dealers will result in fewer drug users. Instead, it has only resulted in more prisoners. Since the 1970s, the government has fought the War on Drugs by locking up as many people involved in the drug trade as possible. The outcome has been a dramatic rise in the US prison population, far outstripping that of any other country, without doing anything to curtail rates of drug use or prevent the opioid crisis from ravaging communities and destroying lives. Kristen’s Law is named after Kristen Coutu, who died in 2014 after overdosing on heroin laced with fentanyl. Opponents of the bill argue that the bill will lead to “the prosecution of ‘small time’ dealers who trade or sell drugs, and who may themselves struggle with substance use disorder, or those who provide drugs to a friend for a few dollars or in exchange for a bed for the night.” This bill ignores the fact that drug dealers rarely know the contents of their own supplies, and that jailing drug dealers will do nothing to halt the supply of drugs, that there will always be another dealer waiting to take their place. If the goal of Kristen’s Law, or any similar legislation around the country, is saving the lives of drug users like Kristen Coutu, it will be an abject failure. However, if the goal is adding to the already outrageously large prison population and ruining the lives of people forced into the Prison Industrial Complex, they could not be picking a better strategy. Should policy makers decide they were serious about protecting drug users at risk of overdosing on heroin, there are policy approaches they could take that have been proven effective. Providing users with a space in which to consume their drugs under the supervision of a medical professional is the best way to ensure that overdoses are quickly and safely reversed. This is not a fantasy. Insite, a safe injection facility in Vancouver, has been open since 2003. Nurses there have reversed hundreds of overdoses, with not a single overdose death. Deaths caused by drug overdoses are avoidable, but giving drug dealers life sentences, or death sentences, will not prevent the next overdose death. Kristen’s Law is an “eye for an eye” type of punishment that is both barbaric and counterproductive. If policy makers wants to honor the legacy of Kristen Coutu, they should do so by saving lives, not destroying them. Tom Houseman
The likely confirmation of Senator Jeff Sessions to be U.S. attorney general is deeply troubling. He believes people who possess marijuana should be arrested. He has recently opposed reform of mandatory minimum sentencing laws and appears to support privatized prisons. Surely clemency is beyond the pale. But the real difficulty goes far deeper than his views about particular policies. He threatens to take us back to the days before we became aware of our national collective responsibility for mass incarceration. It is only seven years – how much longer it seems – since Michelle Alexander told us in The New Jim Crow: Mass Incarceration in the Age of Color Blindness that the United States puts more people in prison per capita than any nation on earth and relegates African American and Hispanic communities to third-world status. Her landmark book exposed the War on Drugs, exploding in the 1980’s, as the primary cause.
Since Clergy for a New Drug Policy began, we have identified mandatory minimums as a key component of the War on Drugs requiring reform. We are pleased to announce that a bipartisan congressional committee has crafted the Sentencing Reform and Corrections Act, which would reform unjust sentencing policies.