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
In a 1996 episode of the tv show Spin City, Deputy Mayor Mike Flaherty (Michael J. Fox) is discussing a proposed syringe exchange program with city hall’s Head of Minority Affairs, Carter Heywood (Michael Boatman). Flaherty would rather the city stick with its old plan of handing out AIDS prevention pamphlets, because “it’s almost impossible to inject narcotics with a pamphlet.” The scene is played for laughs, but there is an underlying truth. The US government has historically avoided harm reduction policies in favor of strategies that are less controversial, but also woefully ineffective. Syringe exchange programs have existed in the United States since the 1980s. They were created by community activists, without government support, as a response to the AIDS crisis. Since HIV is transmitted through blood, distributing clean needles reduced the risk that somebody could become infected with HIV after sharing a needle previously used by an HIV-positive person. Indeed, countless studies have shown that access to clean needles drastically reduces infection rates of not just HIV, but infections such as Hepatitis as well. In addition, those who repeatedly reuse needles risk a variety of infections. By providing drug users with clean, sterilized needles, syringe exchange programs are one of the most effective forms of harm reduction. As the opioid epidemic leads to increased rates of heroin use, syringe exchange programs are more important than ever. Unfortunately, draconian laws at the federal level and in many states make it extremely difficult for syringe exchange programs to help the people who need them most. U.S. Code Title 21 Section 863, also known as the “drug paraphernalia statute,” bans the distribution of drug paraphernalia. The Department of Justice defines drug paraphernalia as “any equipment that is used to produce, conceal, and consume illicit drugs,” a category broad enough that they mention “miniature spoons” as potential paraphernalia. Many states have similar laws, also vague enough that syringes are not always necessarily included. Even when syringe exchange programs are exempt, funding them publicly is an additional hurdle. Until 2016, it was illegal to use any federal funds to support syringe exchange programs. Even now, while funding these programs with federal money is legal, the money cannot be specifically used to purchase needles, a piece of legal tightrope-walking meant to deflect criticism that the government is “soft on drugs.” There are 15 states in which it is illegal to run a syringe exchange program, a diagonal stripe across the country from Idaho to Florida. In these states, which make up the bulk of the Midwest and the Southeast, drug paraphernalia laws forbid individuals from selling or distributing syringes if they have reason to believe that they will be used for illegal drug use. But even in states where syringe exchange programs are legal, hurdles created by state and local governments, as well as local law enforcement, make it unnecessarily difficult for harm reduction organizations to ensure that drug users have access to clean syringes. Illinois is one of the few states in the Midwest that allows syringe exchanges, but the onerous restrictions placed on these programs make the work far more difficult than it should be. Organizations like The Chicago Recovery Alliance must obtain a “research exemption” in order to distribute syringes, a barrier that makes it harder for them to reach the people who need them most. And there is, in fact, no need for more research on the efficacy of syringe exchange programs. Mountains of evidence show that such programs are cost effective for cities and states and that access to clean syringes lowers rates of HIV infection without leading to increased rates of drug use. Effective syringe exchange programs save lives and make communities safer. This has not stopped towns from shutting down needle exchange programs, or preventing them from opening, based on unfounded fears. Last year the mayor of Charleston, West Virginia forced a local syringe exchange program to shut down, claiming that too many used syringes were being found unreturned. This was a baseless claim; 9 out of every 10 needles distributed were returned to the program. Earlier this month, Scientific American dug into why so few syringe exchange programs exist in Virginia, one of the states hit hardest by the opioid crisis. One of the issues, they found, is that “the law [requires] any local community to obtain formal written consent from local law enforcement officers for programs to operate,” and “continues to criminalize possession of even sterile syringes” for the program’s customers. As a result, only three of the seventy-five eligible counties in Virginia have a syringe exchange program. The opioid epidemic is worsening by the year; more people are going to be using heroin, often without the resources they need to stay safe. Harm reduction is about helping people stay safe while offering them whatever support and assistance they need. No program does that more effectively than syringe exchange programs, yet too many states are stuck in a War on Drugs mindset that punishes and stigmatizes drug use. That approach has failed, and harm reduction is one of the new strategies that must be embraced. In the fictional world of Spin City, Deputy Mayor Flaherty shoots down the idea of a needle exchange program. “We are in a war against drugs, in case you haven’t noticed,” he tells Haywood. “That’s the same war we’ve been fighting the last forty years?” Haywood asks sarcastically. “How we doing?” More than twenty years after this scene was first shown on television, it seems that too many politicians have the same answer to that question as Michael J. Fox’s character did at the time: “Any day now.” Tom Houseman, Policy Director
There is no silver bullet for solving the opioid epidemic. The Centers for Disease Control estimates that every day more than ninety people in the United States die due to opioid misuse. Opioid overdose is now the most common cause of death in the US, responsible for more annual deaths than vehicular accidents or homicides. Two recent studies add to the mountain of evidence that medicinal cannabis can be a part of reversing that trend. When President Trump declared the opioid epidemic to be a Public Health Emergency, it was a sign that the government was willing to get serious about tackling this problem. Even as federal funding has been increased to deal with the opioid crisis, Trump and Attorney General Sessions have rejected one of the most important steps that they could take: removing cannabis from the list of Schedule 1 drugs. The Controlled Substances Act was signed in 1970 as President Richard Nixon was ramping up the War on Drugs. This act created the Federal Drug Scheduling System, which classifies drugs by both their medical value and potential for abuse. Cannabis is classified as a Schedule 1 drug, signifying that it has no medical value and high potential for abuse. Scientists and doctors have spent the ensuing decades proving the federal government wrong. Despite restrictions on how cannabis can be used in research, evidence has continually demonstrated the medical value of cannabis. As a form of pain management, a way to lessen symptoms, and, in some cases, a way to aid in recovery, cannabis has been proven to be able to treat or help in the treatment of HIV, arthritis, asthma, epilepsy, glaucoma, and multiple sclerosis. There are multiple cannabis infused products like CBD juice, available on many websites. Now, new evidence indicates that cannabis can be used to fight the opioid epidemic. Two recent studies have examined the impact that legalizing medical cannabis at the state level has had on rates of opioid prescriptions and overdose deaths. In Association Between US State Medical Cannabis Laws and Opioid Prescribing in the Medicare Part D Population, researchers found that in states with medical cannabis laws there are significantly fewer people being prescribed opioids under Medicare than in those without. In states with medical cannabis dispensaries that enable even easier access to the drug, those rates are even lower. A second study, Medical Cannabis Laws and Opioid Analgesic Overdose Mortality in the United States, 1999-2010, demonstrates that states with medical cannabis laws had rates of opioid overdose mortality nearly 25 percent lower than in states where medical cannabis is illegal. This difference was more pronounced the longer a state had allowed doctors to prescribe cannabis to patients. Despite this evidence, those fighting against cannabis legalization continue to deny its health benefits. A South Carolina medical cannabis bill never received a vote in the state house, despite the fact that in one poll nearly 80 percent of respondents supported its legalization. Opponents of a similar bill in Kentucky have demanded more research on the drug’s long-term effects and questioned whether legalization actually would reduce opioid use. In Utah, a ballot initiative will give voters the opportunity to decide this November whether or not medical cannabis should be legal in their state. A recent poll by The Salt Lake Tribune found that more than three-fourths of Utah voters support the initiative, indicating that it is likely to pass. However, the bill faces considerable pushback. Governor Herbert has voiced his opposition, demanding more research before he would be willing to consider the medical benefits of cannabis. Because of its federal Schedule 1 classification, cannabis is technically illegal even in the twenty-nine states that permit doctors to prescribe it. To save lives we need every possible tool at our disposal, but with a ban on cannabis, and severe restrictions on even studying its benefits, the federal government is stunting its ability to help those most in need. From my own experience, when I visited the closest dispensary to utah it was obvious how the legalisation of Medical Cannabis had positively impacted those patients able to gain access to the dispensary. Without question the more we learn and experience, the more the need to legalize cannabis and remove it from the list of Schedule 1 drugs becomes clear. What remains to be seen, however, is if those in power will continue to ignore that evidence, or if they will finally make things right. Tom Houseman
For several decades the United States has relied on mass incarceration as a tool for criminal justice, mental health treatment, and economic stimulus. The result is a prison population that dwarfs that of any other developed country yet has shown no corresponding positive benefits in crime deterrence, mental health, or economic benefits. The prison industrial complex has wasted billions of dollars and destroyed millions of lives. Decarcerating America, a series of essays edited by Ernest Drucker, is an admirably comprehensive and insightful attempt to address this problem. Decarcerating America approaches the problem of mass incarceration from a variety of perspectives. Contributors include public health professionals, professors, policy advocates, and researchers. That more than one writer featured was a prison inmate is a testament to the book’s approach to prison reform: listening to the voices of the currently and formerly incarcerated and taking what they say seriously. The solutions proposed throughout Decarcerating America are serious and aggressive; Drucker opens the book by stating that the goal of decarceration is cutting the prison population of the United States in half. Not surprisingly, drug policy reform is discussed in depth absolutely crucial to any decarceration strategy. Gabriel Sayegh, founder of the Katal Center for Health, Equity, and Justice, argues compellingly in favor decriminalization of all drugs. The five authors of an essay on post-incarceration harm reduction lay out the evidence against strict abstinence-based rehabilitation programs, which often do more harm than good. By punishing addicted individuals for relapses that are a part of the recovery process, these mandated programs only serve to punish people, rather than help them. The authors propose a more personal, tailored approach to helping drug addicted individuals take control of their lives. Several of the writers point out that many prison reform proposals focus exclusively on non-violent offenders, especially those convicted of drug crimes. Not only would this fall well short of the goal of a 50 percent reduction, but it dehumanizes those convicted of violent crimes, who tend to have been the victims of violence themselves, and who often suffer with drug addiction and mental illness. Drastic reform in sentence length for all crimes, and a more effective parole system, are essential to real progress. In particular, parole decisions made based on risk calculation, not the seriousness of the crime committed, would be far more fair, effective, and humane. Mujahid Farid, of the Release Aging People in Prison (RAPP) campaign, points out that the recidivism rate for people over fifty when they are released from New York prisons is one eighth that of the overall rate, a fact that is not taken into account by parole boards. Releasing almost all of those prisoners would drastically reduce prison spending without risking a rise in crime. If the goal of prison is rehabilitation, prisoners must be given a voice in how they are treated and how prisons can most effectively prepare them for their next steps. Humane treatment of prisoners will make an enormous difference. Elizabeth Gaynes and Tanya Krupat, of The Osborne Association, explore the impact that prison sentences have on the children of the incarcerated. Sending people to prisons hundreds of miles from home and not allowing in-person visits from family increases recidivism rates and has serious, long-term consequences on the mental health of children unable to see their parents. Who is benefiting from this system? In the last essay of the book, author and activist Eric Lotke looks at the local economic incentives for prisons. Prisons seem to be appealing investments for small towns in rural areas, since they provide steady jobs for local citizens. However, because they do not attract other investments, and can even dissuade other companies from moving to those towns, soon the town becomes entirely reliant on the prison and is loath to let it close. Decarcerating America is a fascinating and enlightening read for anyone who believes that the prison industrial complex needs to be dismantled. And it offers hope. Multiple contributors contend that while the Trump Administration and its “law and order” approach to crime is deeply troubling, progress can still be made at the local, state, and even federal level. By instituting policies that are proven to be effective and incorporate the voices of incarcerated and formerly-incarcerated individuals, the massive American prison system, and the damage it does, could one day be a thing of the past. A Review by Tom Houseman
The toll taken by the War on Drugs is enormous and incalculable. People had their lives destroyed for minor infractions, and that damage can never be undone. Still, there must be a way for the government to make up for the harm it has caused, and the lives it has destroyed, in the pursuit of the impossible goal of a “Drug-Free America” that resulted in overly harsh law enforcement targeting urban communities of color. One way to begin to repair this damage is through policy designed to improve the lives of victims of overly punitive marijuana policies in states that have since legalized recreational use. Knowing that marijuana is now legal will be cold comfort to those who spent years in prison for being caught holding a joint, who cannot get public housing or federal student loans because of a criminal record, who have found themselves unemployable because of a box on a job application that they have to check. Countless policies at the state and federal levels seem designed to destroy the lives of convicted felons, to make their path to rehabilitation more challenging, to hinder their ability to build a stable life and to increase the likelihood of recidivism. Not only should these punishments no longer be inflicted on those who have unnecessarily suffered for infractions since made legal, but steps can and should be taken to ensure that victims of the drug war receive restitution for the suffering they endured. Unfortunately, policy regarding legalization does not always take this approach. Among the many policies related to marijuana legalization that seem to favor the white and rich are the various employment and licensing restrictions placed on those with previous criminal convictions. Essentially, this means that anybody arrested for selling marijuana when it was illegal is barred from reaping the rewards of its legalization. Accounting for the fact that the strict regulations on marijuana sales makes the price of opening a dispensary extremely high, the effect of this legislation is that those who suffered under overly aggressive laws for decades (typically minorities living in poverty-dense neighborhoods) cannot benefit from marijuana legalization. Instead, all of the money will go to people who are already wealthy and were never caught smoking marijuana. If state and local governments do not account for the damage they have done and take steps to atone for it, the history of racial injustice in drug policy enforcement will leave a long and painful legacy. In 2016, three states voted to legalize recreational marijuana: Massachusetts, Nevada, and California. While dispensaries in Nevada have already been up and running for months, the process of regulating the sale of marijuana in California, which has largely been left up to local jurisdictions, has been slow and complicated. Yet one recent development from the Los Angeles City Council shows that they are taking seriously their responsibility to lift up communities that have been harshly punished by the drug wars. Herb Wesson, the LA City Council President, has proposed a program that would support people convicted of marijuana offenses by expunging their records and helping them set up legal dispensaries. In an idea inspired by one proposed by the Oakland city government, the city would provide assistance with licensing, and even offer reduced rent on vacant city properties. In addition, new dispensaries would be required to hire a certain number of low-income workers in order to maintain their license. California law prohibits local governments from giving preferential treatment based on race or ethnicity, but since the war on drugs has so disproportionately punished people of color, this form of reparation is almost certain to have the intended effect. One of the main arguments in favor of marijuana has long been the revenue that will be raised to fill the coffers of states and cities, and undoubtedly the taxes raised from marijuana sales, coupled with the money saved by not having to enforce drug laws, will be enormously beneficial. But cities need to do more than legalizing marijuana and wait for the money to roll in if they want to heal the wounds inflicted by decades of discriminatory policies. By erasing the drug convictions of low-level offenders and helping them enter the rapidly expanding legal marijuana market, California has created a model for how to repair the harm it has caused. Hopefully, other cities will follow suit.
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