Miles's blog

I have made no secret of my problems with the current war on drugs.  Not only do I think it is failing for emphasizing the wrong thing, but drug prosecutions are fueling the criminal justice debate to the detriment of law enforcement and prosecution.

Two pieces in today’s New York Times demonstrate this.  In one the article quotes a federal judge railing against the mandatory sentences he is forced to impose on drug dealers, whining about the dealers lack of management of a drug enterprise, but still being held accountable as a principle because he was a complicitor.  And while he could have restricted his comments to his issues with the specific statutes in question, he goes on to make a broader point that the prevalence of mandatory sentence provisions has deeded the criminal justice system over to the prosecutors rather than the judiciary where it belongs.

The second is part of the Times’s continued attack on what they derogatorily call “stop and frisk” or the right of police officers to detain and search those for whom the police possess reasonable suspicion they have committed or are about to commit a crime.  Another federal judge recently issued an opinion that the New York police are abusing this power by exercising it both without sufficient suspicion and in a racist manner.

Of course, the paper prints no defenses of either mandatory sentences or Terry stops because that would undermine their position that the greatest threat to a free society is government abuse. 

I am not going to defend either of these policies or debate the Times’s position, because I think that at this point the focus in on the wrong part of the issue.  The issues should be whether the police are doing improper Terry stops and whether the current mandatory sentence provisions are appropriate for the crimes committed.  Because most of the problems with these situations are related to drug prosecutions, an area where most of America believes the laws are too onerous and expensive to prosecute, it allows those with anti-law enforcement bias to secure a wedge to take on these broader issues.

I hate the problems related to drug arrests and prosecutions fuel the criminal justice debate.  One of the problems with the stops and frisk is the police reliance on “furtive gestures.”  The ones who whine the loudest, I suppose are those whom will have something to hide if stopped by the police.  Most of the others have probably never ridden in a police car.  Having done so  numerous times, I fear the furtive gesture.  When the police have reasonable suspicion that the suspect is armed, the furtive gesture supports a legitimate right to search for a weapon.  Unfortunately, I bet the cops are using this primarily as suspicion to search for marijuana.  In fact many of the articles tying problems with Terry stops rope in arrests for small amounts of marijuana. 

This conflating of two different issues serves law enforcement poorly.  Too many times the police use their legitimate or other suspicion of drug possession as grounds to search all over.  Of course in modern America finding drugs is all too common an occurrence.   Because the police action seems disproportionate to the problem, in other words most people don’t want to give up any level of privacy to support drug prosecutions, the entire police underlying stop and frisk is called into question.  If the police would restrict use of Terry stops to more serious offenses no one would have a problem, as indeed few people did in the 45 years since Terry v. Ohio was decided until recently.

Similarly, mandatory sentence laws were enacted because judges could not be trusted to use their discretion wisely, at least not all judges.  For a judge to hate them is no different than a dog hating a leash.  When disgruntled judges rail against mandatory sentences for violent crimes, however, or repeat drunk drivers nobody is too sympathetic, but when use drug sentences everybody takes notice.   Ignoring the fact that without muscle men and lookouts drug dealers cannot function, judges spin their scenarios of sympathetic defendants whipsawed by the cruel prosecution’s use of excessively harsh sentences to attack the underlying principle that the legislature sets the parameters of sentences not judges.  They hate that they are subordinate to an elected body in this respect, and the war on drugs has given them a voice.

Too many issues are soaked up in the debate on drugs which should be kept out.  But the tunnel vision of too many cops and prosecutors that the solution to America’s problems is vigorous prosecution of drug cases is dragging the debate on drugs into the rest of the criminal justice arena.  In my mind, that is a bad thing.