The War on Drugs Justice

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