The War on Drugs Justice

Tuesday, March 13, 2012

According to a story in The New York Times, one casualty of the so-called "War on Drugs", could well and relatively easily be a criminal justice system that functions at all:

After years as a civil rights lawyer, I rarely find myself speechless. But some questions a woman I know posed during a phone conversation one recent evening gave me pause: "What would happen if we organized thousands, even hundreds of thousands, of people charged with crimes to refuse to play the game, to refuse to plea out? What if they all insisted on their Sixth Amendment right to trial? Couldn't we bring the whole system to a halt just like that?"
Michelle Alexander, whose answer is in the affirmative, explains why she thinks so:
[I]n this era of mass incarceration -- when our nation's prison population has quintupled in a few decades partly as a result of the war on drugs and the "get tough" movement -- these rights are, for the overwhelming majority of people hauled into courtrooms across America, theoretical. More than 90 percent of criminal cases are never tried before a jury. Most people charged with crimes forfeit their constitutional rights and plead guilty.

... In the race to incarcerate, politicians champion stiff sentences for nearly all crimes, including harsh mandatory minimum sentences and three-strikes laws; the result is a dramatic power shift, from judges to prosecutors.

The Supreme Court ruled in 1978 that threatening someone with life imprisonment for a minor crime in an effort to induce him to forfeit a jury trial did not violate his Sixth Amendment right to trial. Thirteen years later, in Harmelin v. Michigan, the court ruled that life imprisonment for a first-time drug offense did not violate the Eighth Amendment's ban on cruel and unusual punishment.
Alexander comes across to me a little bit as a soft-on-crime leftist: There's nothing wrong with being "tough on crime" as long as the sentence is appropriate and there has been an actual crime committed (i.e., the individual rights of another person have been violated or threatened). Nevertheless, she raises a good point about the folly of making non-crimes illegal -- a point which conservatives, with their fixation on legislating morality, seem to me quite likely to miss.

Between leftists eager to quit punishing crime at all and theocrats wanting to continue prohibiting activities that do not violate the rights of others, I am hardly eager to see what might come of such a crisis.

-- CAV

6 comments:

Realist Theorist said...

It's an interesting activist idea, but I doubt one could convince enough people not to plea-bargain. If it was my life, I wouldn't risk many more years of jail for the sake of easing up the drug-laws. After all, most people who are jailed for drug-crimes have earned money from the existence of drug-laws and I doubt they would see any self-interest in lessened drug-laws.

Gus Van Horn said...

I think (and hope) you're right.

Vigilis said...

Well, Gus, I agree with your analysis of "leftists eager to quit punishing crime at all and theocrats wanting to continue prohibiting activities that do not violate the rights of others," up to your peculiar omission of the singular profession which gains handsomely from having such crimes on the books at all.

I indict the judges, plaintiffs attorneys and prosecutors who profit monopolistically from the concentration of legislative, executive and judicial authority.

Voters are dumb to elect more them to such high concentrations of federal offices and watch as they appoint each other to select committees.

Gus Van Horn said...

Vigilis,

I don't mention lawyers because, despite the fact that many profit (in the short run) from improper legislation on the books is that that state of affairs is a symptom, and not a cause.

Law is a profession, just like medicine: Even in a free society, there would be a need for lawyers, just as there would still be a need for physicians even if everyone were healthy and generally knew how best to take care of themselves.

But consider a society in which most people subscribed to incorrect notions about how to care for themselves, and routinely made themselves ill as a result. Some -- maybe even most doctors (knowingly or not) would profit from the situation, and many would even work to entrench and expand the status quo. Would the solution to the problem be to blame doctors (as such) for it all? Or would it be to discover and make common knowledge the correct principles of health? (Doing this would help better doctors change the way they practice and, via an informed clientele, help drive most real quacks out of business.)

The situation with lawyers is analogous. This is why, despite the fact you frequently try to lay the blame on that profession for the various ills I bring up here, I refuse to do so and always will. Many are indeed making things worse, but it's because most people, ignorant of the proper principles of government (and ethics, which is a big part of why they accept the idea of the nanny state in the first place), are allowing them to get away with it/helping them do so (i.e., by electing the bad ones (and bad nonattorney politicians) year in and year out.

GUs

Vigilis said...

Gus, any profession from auto dealers to zookeepers would be as horrendous as lawyers in the concentration to which the latter occupy elected offices. Lawyers are barely 2% of the workforce (and ^0% of the U.S. Senate).

It is not lawyers I have blamed: you misread me. Rather, it is:

"Voters are dumb to elect more them to such high concentrations of federal offices and watch as they appoint each other to select committees.

Gus Van Horn said...

Vigilis,

Politics deals extensively with law, though. Objecting to having a high concentration of lawyers in political office strikes me as akin to objecting that we're letting too many people with biology majors into medical school.

Gus