Ralph A Weisheit. 21st Century Criminology: A Reference Handbook. Editor: J Mitchell Miller. 2009. Sage Publications.
Drugs have had a major impact on the criminal justice system for decades. Each year since 1996, more people have been arrested on drug charges than for any other single offense. If one were to include arrests specifically for alcohol (driving under the influence [DUI], liquor law violations), then nearly one third of all arrests have been directly related to alcohol or illicit drugs. If one were to count robberies, burglaries, and assaults conducted under the influence of alcohol or drugs, then it could be said with confidence that no other factor has demanded so many criminal justice resources or has caused communities so many problems. To understand the current situation, it is helpful first to look back to the beginning when drug abuse first came to be defined as a criminal justice problem.
In the Beginning
Americans like to look to the past as a time of innocence, but substance abuse problems have been a feature of American society from the beginning. At first, alcohol was a problem; by the early 1800s, Americans were consuming perhaps twice the amount of alcohol per person as in the 2000s. Immigration, industrialization, and the rise of cities led to an increase in social problems associated with alcohol and the rise of anti-alcohol groups. Numerous state and local laws were put in place to restrict or even ban alcohol, but the federal government did not become involved until passage of the Eighteenth Amendment to the Constitution, in 1919. With that amendment, the manufacture, sale, or transportation of alcohol became a federal crime to be enforced by the newly created Bureau of Prohibition, located within the Treasury Department. Prohibition remained in place until 1933.
The social environment that led up to Prohibition also ushered in a host of state and local laws designed to control a wide range of behaviors thought to be a problem—including gambling, prostitution, sex, drugs, the length of women’s skirts, and the size of bathing suits. It was during this period that the criminal justice system saw the spread of prisons, the rise of probation, and the creation of the juvenile court. The late 1800s and early 1900s was also a time of relatively widespread drug use. This was a time when medicine was crude, to put it mildly, and a number of drugs were marketed for a variety of ailments. Codeine was discovered in 1831. Morphine was rather freely administered as a pain killer to wounded Civil War soldiers—to the point that morphine addiction was sometimes called the “soldier’s disease.” In 1898, Frederich Bayer and Company marketed heroin as a treatment for respiratory problems, and the drug was used by some as a treatment for morphine addiction. Marijuana has a long history of use as a medicine in the United States and by the late 1800s was administered for more than a dozen ailments, from rheumatism to alcohol withdrawal to asthma.
At that time, many of the street drugs known today were freely available, often in over-the-counter medicines known as patent medicines. There was no requirement that over-the-counter medicines list their contents. Consequently, consumers were unwittingly taking medicines laced with opiates, cocaine, or other drugs. Medicines sold as treatment for morphine addiction sometimes had morphine as a main ingredient. Similarly, elixirs sold to combat alcoholism sometimes were heavily loaded with alcohol.
Finally, with magazines and newspapers running stories about these unregulated medicines, and with Upton Sinclair’s exposé The Jungle revealing disgusting practices in the meatpacking industry, Congress felt compelled to act. The result was the Pure Food and Drugs Act of 1906. This act did not ban such drugs as heroin, morphine, or cocaine, but required that the content of medicines and packaged food be clearly labeled. Having been made aware of the presence of addicting drugs in these medicines, the public increasingly turned away from them. While the problem of drug addiction had diminished, it had by no means disappeared.
For so long as the drug problem was defined primarily as one of the white middle class, the government emphasized regulation, not criminalization. However, narcotic drugs (opium, morphine, and heroin in particular) and cocaine were seen as a growing problem among minorities, and there were concerns about violence arising from the use of these drugs. In addition to concerns about domestic abuse, the United States was in the awkward position of encouraging other nations to enact restrictions on the trafficking in narcotics while having no national law of its own.
The Harrison Narcotics Act
Efforts to enact strict laws were initially turned back by the pharmaceutical industry. In the end, a compromise was struck in which those who sold or otherwise dealt in narcotics were required to register with the government and pay a tax. This new law, the Harrison Narcotics Act of 1914, was ostensibly a tax act, but was clearly intended to limit the availability of narcotics, such as heroin, morphine, and opium. And, although cocaine is a stimulant and not a narcotic, it was treated as a narcotic in the law. Even today, the Federal Bureau of Investigation’s (FBI) annual report on the number of drug arrests lumps cocaine and narcotics into a single category.
At the time of the Harrison Act, the FBI and Drug Enforcement Administration (DEA) did not exist, and enforcement fell to the Treasury Department, which would later be called upon to enforce the prohibition against alcohol. The Harrison Act limited but did not completely ban narcotics. The wording of the act suggested that doctors could use their professional judgment to decide how much of a drug could be prescribed and to whom. The language was vague, however, and the meaning of the law had to be interpreted—a task that also fell to the Treasury Department. The result was the establishment of a precedent in which law enforcement officials had the final word on what was to be considered proper medical practice. This model is still followed today in that the DEA has the authority to decide which drugs may be used in medical practice, which drugs require a prescription, which doctors may write a prescription, which pharmacists may fill a prescription, and the volume of prescription drugs that pharmaceutical companies are allowed to produce. Thus, from the very beginning in the United States, law enforcement has been viewed as the primary tool for controlling the drug problem.
This was also a time when there were few federal crimes on the books, with nearly all criminal justice functions left in the hands of states. Consequently, drug law enforcement was a major component of the federal criminal justice system. By the late 1920s, for example, nearly one third of federal prison inmates were incarcerated for violating federal drug laws, more than for any other category of federal offense.
The Federal Bureau of Narcotics
At first, enforcement of the Harrison Narcotics Act was the responsibility of a division within the Prohibition Unit of the Treasury Department. However, as alcohol prohibition became increasingly unpopular, and as scandals hit the Prohibition Unit, there was pressure for change. That change took place in 1930 when the Prohibition Unit was moved into the Justice Department and a new agency was formed within the Treasury Department specifically to deal with national and international issues regarding illicit drugs. The newly created Federal Bureau of Narcotics was headed by Harry J. Anslinger, who had been the Assistant Commissioner of the Prohibition Bureau. Anslinger’s approach to the drug problem was to promote criminal enforcement and harsh penalties as a deterrent to drug trafficking and use. Congress was sympathetic to this approach and passed increasingly harsh penalties, and many state laws were even harsher.
The 1914 Harrison Act explicitly addressed cocaine and opiates, leaving the control of other drugs, including marijuana, up to the states. The Federal Bureau of Narcotics eventually had jurisdiction over marijuana with passage of the Marijuana Tax Act of 1937. Today, while most think of cocaine and heroin when they think of illegal drugs, there are more drug arrests for marijuana than for cocaine and heroin combined.
Though there is a tendency to think of the era of the Bureau of Narcotics as one of only harsh punishments, there were glimmers of treatment. As regards the criminal justice system, the most notable of these treatment efforts was the creation of two prisons specifically designed to treat heroin addicts. These so-called narcotics hospitals were created in the mid-1930s and housed both inmates convicted on federal drug charges and addicts who voluntarily admitted themselves. Though opened with great fanfare and optimism, over time these facilities came to be seen as failures. For the most part, treatment occurred outside of the criminal justice system.
A New Era: The 1960s and 1970s
While government agencies are by their very nature political, it was during the 1960s and 1970s that drug abuse moved into the forefront of the political arena. By the mid1960s, drug abuse had spread into the middle class, particularly among college-age people, the very people most vigorously protesting the Vietnam war, perhaps because they were also the group most likely to be drafted. Thus, in addition to becoming a more visible problem in itself, drug use also came to be associated with antigovernment sentiments and activities. Richard Nixon, then president of the United States, became the first president to declare a war on drugs and to explicitly tie illicit drug use to more general criminal activity.
With the help of Congress, Nixon took a series of steps that launched the efforts against drugs into a new era. First, Congress passed the Comprehensive Drug Abuse Prevention and Control Act of 1970. This act replaced numerous laws scattered across agencies and combined them into a single law to be enforced by the Bureau of Narcotics and Dangerous Drugs (combination of the Bureau of Narcotics and the Bureau of Drug Abuse Control, formed in 1968). The act was intended to eliminate unnecessary duplication of efforts across agencies and consequently increase efficiency and accountability. It also created the system, still in place today, by which drugs are placed into one of five categories or schedules. Schedule I drugs are those that have no legitimate medical use and therefore cannot be prescribed by doctors. At the other extreme are Schedule V drugs. These drugs have little or no addictive potential and are considered the least dangerous. The act also gave the Bureau of Narcotics and Dangerous Drugs the power to regulate doctors and pharmacists who distribute prescription drugs and to decide production levels of individual drugs. The act gave the Bureau, and later the DEA, the power to decide the category into which drugs were to be placed, the power to take away the ability of physicians and pharmacists to prescribe drugs, and the power to monitor drug distribution to prevent diversion to the illicit market. Reflecting the historical emphasis on law enforcement, the act did not require the agency to reflect the opinion of medical professionals.
Having streamlined drug laws, Nixon then turned to streamlining the bureaucracy of federal drug enforcement. In 1973, he signed a reorganization plan that combined the Bureau of Narcotics and Dangerous Drugs, the Office of Drug Abuse Law Enforcement, and other federal offices into a “super agency,” the Drug Enforcement Administration (DEA). The DEA began an ambitious effort to more aggressively counter the drug problem and to gather information about emerging drug use trends. The DEA also dramatically expanded the number and capacity of federal drug laboratories to assist investigators and prosecutors.
Drugs and Crime
Nixon’s war on drugs—and the wars that followed—was predicated on the notion of a direct link between drugs and crime. It was believed that much of the street crime and domestic violence in America could be directly traced to the use of illegal drugs. Researchers have spent years studying this issue, and a clearer picture is emerging. First, there is a distinction between crime linked to the business of drugs and crime linked to drug use. There is no question that the business of drugs is linked to crime, particularly violent crime, as battles emerge over sales turf or as disputes arise over price or the quality of the product. More complex is the link between drug use and crime. Not all drug users engage in crime. In fact, most drug users are experimental users whose drug using career is short, for whom drugs cause no major disruption in their lives, and for whom there is little crime. More problematic for the criminal justice system are chronic drug users, many of whom are actively involved in crime. While fewer in number than the experimental user, their impact on the criminal justice system is substantial. The best evidence is that for chronic drug users who are engaged in criminal activity, their criminal careers began before their drugusing careers, but that once drug use began, their involvement in crime escalated. In other words, drugs do not create crime but amplify existing criminal tendencies. What would happen to crime if illicit drugs were to suddenly disappear? Crime related to the business of drugs would almost certainly go away. Crime by drug users might go down, but this is not a certainty. Users might simply switch to legally manufactured prescription drugs, or they might increase their use of alcohol, the drug most closely connected to violence.
The Modern Era
Nixon may have been the first president to declare a war on drugs, but he was not the last. In November of 1980, Ronald Reagan was elected president and by 1982, he was declaring a war on drugs. Like Nixon, Reagan’s war was to include both legislative action and bureaucratic restructuring, all with the help of Congress. He began by creating the Drug Abuse Policy Office (a.k.a. the “Drug Czar’s” office), accountable directly to the president. Next, every federal agency was required to submit a budget indicating what it was doing in the war on drugs. Members of the president’s cabinet were also asked to explain what they were doing in the war on drugs. In short, the entire federal bureaucracy was directed to attack the drug problem. Even the military was expected to provide support for civilian drug enforcement efforts.
President Reagan had made the war on drugs one of the cornerstones of his presidency. During that time, Congress was controlled by Democrats, who were also seeking to gain political advantage from the war on drugs. The opportunity for Congress to make a bold public statement came in 1986, following the death of Len Bias, a college basketball star who within 48 hours of being drafted by the Boston Celtics died from an overdose of cocaine. The media frenzy surrounding his death presented a highly public opening for Congress to quickly pass sweeping legislation that would fund additional antidrug efforts and give the government unprecedented power to apprehend drug traffickers. State lawmakers followed suit, enacting harsher penalties and giving criminal justice unprecedented power to attack the drug problem. Out of this general environment arose a host of programs and practices. Some of these programs arose from grassroots citizens organizations, such as parent groups. Others, such as extensive drug testing for job applicants, arose from private businesses. However, the focus in this chapter is on the criminal justice response, and it was sweeping. Though the various components of the system often worked in concert to respond to the drug problem, to simplify the discussion the police, courts, and corrections will be discussed separately.
Given the historical precedent of treating the drug problem as a crime problem, as opposed to a public health problem, it should not be surprising that the modern war on drugs is weighted heavily toward interdiction and law enforcement. Each year since 1996, more people have been arrested on drug charges than for any other offense, with the number approaching 2 million people annually. As many as 80% of those arrests are for simple drug possession.
Enforcement has always been the top priority, but within the law enforcement community, there has been some recognition of the value of prevention. Although in the past, the DEA and FBI have provided modest support to prevention programs, by far the most visible of the law enforcement prevention efforts has been the Drug Abuse Resistance Education (D.A.R.E.) program administered by local police.
Drug Abuse Resistance Education (D.A.R.E.)
Created in 1983 by the chief of the Los Angeles Police Department, D.A.R.E. trained local police all across the country to visit local elementary and senior high school classrooms to educate students about the harmful effects of drugs and to teach them techniques for resisting drug use. The program became immediately popular and at one point was taught in as many as 80% of the schools in the United States. Although well received by parents, school officials, and local police, systematic evaluations of the program were generally disappointing, suggesting little or no effect on subsequent student drug use. In 2003, the General Accounting Office summarized the existing research on D.A.R.E. and concluded that the program did not reduce drug use. While there was some evidence that the program increased negative opinions about drugs, those effects were short term at best. Others questioned whether D.A.R.E. encouraged children to turn in their parents and friends, and wondered whether this was an appropriate value to instill in students. Despite scientific evidence suggesting its ineffectiveness and concerns about the ethical implications of the program, D.A.R.E. continues to be popular, and the model has been adapted to an antigang program called Gang Resistance Education and Training (GREAT).
Even at its peak, D.A.R.E. represented only a small fraction of police efforts against drugs. The primary task for police is to find and arrest those who possess and sell drugs. The problem for police is that drug possession and sales are what are known as consensual crimes. That is, all parties involved have an interest in keeping their activity from the police. There is no victim in the sense that there is a victim in a homicide or robbery. This means that police must actively seek out drug dealers and users who are actively seeking to avoid detection. This has several implications for the nature of drug enforcement. First, it means that the number of drug-related arrests will be a direct reflection of the amount of resources police put into drug enforcement. Second, it means that police are encouraged to use a variety of surreptitious means to make drug cases, such as using informants and undercover officers. Third, criminal justice officials who handle drug cases may be particularly susceptible to corruption. For example, a drug dealer with 10 kilos of cocaine is not likely to complain if the case against him or her is based on 2 kilos, with the other 8 kilos having been taken by an undercover officer. Attention is now directed to some of the more controversial issues raised in drug enforcement cases.
The idea of identifying drug dealers and drug couriers through the use of profiles appeals to people’s sense that humans follow predictable patterns of behavior and that science can identify those patterns and use that knowledge to apprehend drug offenders. The idea of profiling has several dimensions. First is the use of behavioral and environmental cues to identify offenders. This was first tried in the late 1960s to identify potential airplane hijackers. This early effort failed, and hijacking was only reduced when all passengers were screened for weapons, a process that intensified after the 2001 attack on the World Trade Center. The first efforts to use profiling to identify drug couriers happened in the mid-1970s when a DEA agent at the Detroit airport developed a list of 11 characteristics that would suggest someone was a drug courier.
Ordinarily, the courts have rather strict rules about what scientific evidence may be admitted in court, but behaviorbased profiles have been accepted as valid even though there is no scientific proof as to their effectiveness. The courts have ruled that the full profile need not be revealed in court, to protect the integrity of the profile. Instead, officers need only identify the key element used in the profile. An examination of court cases in which profiles were used reveals that over time the list of identifying characteristics became so expansive that nearly everyone could be said to fit the profile. For example, the key identifying characteristics named in various court cases have included the following: first to deplane, last to deplane, and middle to deplane. Some cases were triggered by the individual acting too nervous, while others were triggered by the individual acting too calm, and so on. Eventually, this model was applied to highway stops with an equally wild variability in the factors that were used to identify someone as a drug courier. The public’s faith in profiling was bolstered by sensational cases involving serial killers. The agents who developed these profiles became minor celebrities, and a host of movies and television programs touted the accuracy of serial killer profiles. Despite the public fascination with this approach, no serial killer has ever been found because of a profile. Behavioral profiling may someday prove a valuable tool, but to date it has yet to prove its value.
More controversial is a second form of profiling in which race is the key identifying characteristic. This has proven to be one of the more explosive issues in criminal justice. Many minority drivers believe they are stopped simply because of their race, while police typically deny that race plays a role in traffic stops. What is known is that in many (but not all) communities, minority drivers are stopped and searched by police at a disproportionately high rate. Further, even if most police don’t engage in racebased profiling, the actions of a few can lead minority drivers to accurately feel they are targeted. Thus far, research has done little to resolve the issue, partly because a conclusive answer requires entering the heads of individual police officers to accurately know what motivated their decision. Unfortunately, police themselves have only reluctantly cooperated with research, generally oppose collecting data that would allow individual officers to be identified, and have opposed programs that would use profiles to identify problem officers. This resistance further arouses the suspicions of minority drivers.
Research has yet to prove that race-based profiling is ubiquitous, as some believe, or has been greatly exaggerated, as is believed by others. Whatever the reality, the perception of minorities that they are targeted by police does a tremendous amount of damage to police–community relations and undercuts broader enforcement efforts.
Another controversial issue in drug law enforcement is the use of criminal informants. Informants are people who provide information about criminal activity to the police. While informants provide valuable information for many types of crime, the consensual and secretive nature of drug dealing requires that informants be used more frequently in drug cases than for any other type of criminal case. Nearly all drug cases in some way utilize informants.
The assistance of honest citizens is often valuable in solving crime. Controversy arises, however, when criminals provide information to the police. Criminals are often in a unique position to observe the criminal activity of others, but their motives are not always pure, and they sometimes provide misleading information that frames innocent citizens or exaggerates the criminal involvement of others. Some may cooperate in exchange for cash payments and others to exact revenge. The most common reason why criminals cooperate with police is to have their own charges reduced or dropped altogether. A drug dealer facing 20 years in prison has strong incentives to have his or her charges reduced by telling police about people with whom the dealer has done business, or to even seek out additional co-offenders. The larger the number of names they can provide the police, the greater the sentence reduction such informants can expect. Consequently, they may face considerable pressure to fabricate information.
Particular problems can arise when criminal informants are released with instructions to build cases over time. In order to move among fellow drug dealers, it may be necessary for informants to buy and sell drugs. This, in turn, puts the police in the curious position of shielding someone who is making drugs available in the community. In some cases, the drug-dealing activity of the informant may be greater than that of the people upon whom he is informing. Some informants have used their positions to eliminate competitors while expanding their own drug businesses. In other cases, police may look the other way when the informant pockets a portion of seized drugs in exchange for continuing to provide information to the authorities. Sometimes the drug dealer is also a drug user, and the informant may be allowed to continue using in order to effectively gather information on the street. This becomes particularly problematic when the user overdoses while working for the police or when juveniles are allowed to continue buying and using drugs while gathering information for the authorities.
The use of criminal informants is a dilemma for the police. Without informants, it would be difficult or impossible to make many drug cases. At the same time, using criminal informants presents a host of legal and ethical problems. It may mean tolerating criminal activity by informants, obtaining false or misleading information, or putting the addict who is discovered to be an informant at risk of being killed, while doing work that ultimately should be done by the police themselves.
By any account, the drug business is one that generates enormous revenues. Much of the effort to control drugs has focused on arresting buyers and sellers, and for many years, the revenues from drugs were secondary to enforcement efforts. Asset forfeiture represents a shift in focus from the criminal actor to the financial gain derived from criminal acts. In principle, this is perfectly reasonable and just. In practice, however, the law can be misused. To understand how this can happen, it is important to recognize there are two types of asset forfeiture—criminal and civil. Criminal forfeiture, about which there is little controversy, applies after someone has been convicted of a crime. As an example, no one expects a convicted bank robber to keep money gained from the robbery. Controversy arises with civil forfeiture, which is very different.
The distinguishing feature of civil forfeiture is that it is an in rem proceeding. That is, the legal action is against the property itself. The issue is not the guilt or innocence of the owner but the guilt or innocence of the property. For example, the legal title of a criminal case might be “The State of Texas versus John Smith,” whereas in a civil case the title might be “The State of Texas versus a 2008 Ford Mustang.” For much of the history of the United States, there were rather strict limits on the ability of the government to apply civil forfeiture. In the mid-1980s, as part of sweeping legislative changes to provide more tools to fight the war on drugs, Congress enacted legislation giving federal authorities broad powers to seize cash and property under civil law. States soon followed suit, passing their own civil forfeiture statutes.
There are numerous implications of treating forfeiture as a civil matter. Most serious is that as a civil procedure, many of the basic constitutional protections afforded by the Bill of Rights do not directly apply. This was particularly problematic in the early years of these statutes, which were passed with few restrictions on law enforcement. Consequently, hearsay (rumors) could be used as the basis for seizing property. The property owner had no absolute right to be present at a forfeiture hearing. If the property owner was present and asserted his or her right to remain silent, exercising that right could be used as proof of the property’s guilt. If the owner chose to speak and said anything incriminating, those statements could later be used in a criminal case against the owner. While the innocence of the owner could be considered in the decision to forfeit property, the owner’s innocence was no absolute defense against forfeiture because the issue was the guilt of the property, not the owner. Thus, an innocent landlord could lose his property if a tenant conducted a drug deal in one of his apartments. Further, the property was considered owned by the government from the moment it was used in a drug transaction. Consequently, an innocent citizen who purchased a house that had been used in a drug deal by the previous owner might lose that house. Unlike a criminal case, in which the burden of proof was on the state to prove the defendant’s guilt, in civil forfeiture cases, the burden of proof was on the property owner to prove the property’s innocence. In effect, the property was guilty until proven innocent. Because the property was assumed guilty, it could not be used as collateral for a loan to hire a defense attorney. In some cases, the owner was required to post a bond of as much as $5,000 for the privilege of asking for the return of his or her property. And, even if the property was returned, the courts were allowed to keep all or a part of that bond to cover the cost of the proceedings. Civil forfeiture does not require that the owner of the property be convicted of a crime, and in as many as 80% of forfeiture cases, there is no criminal conviction.
Law enforcement agencies were initially allowed to keep seized assets, and for many agencies, forfeiture became an important way to supplement their budget. Some drug agents were under greater pressure to seize cash than to seize drugs or to arrest dealers. Consequently, there were instances of agents luring drug dealers into their community so they could seize their cars and cash, or allowing large drug shipments to be sold on the street so that cash could be seized. Stories of misused funds and innocent owners losing their property made their way into the press and put on pressure for change. In many ways, states led the way in reforming forfeiture laws. Stories of the gross misuse of the law and of the forfeited funds, along with the realization that seized assets could be used to shore up sagging state budgets, led most states to require that seized assets go to general revenue rather than the agency. Although it became possible through something called “adoptive forfeiture” for local agencies to keep a portion of the seized assets by having the forfeiture done in cooperation with federal authorities, the pressure to make large seizures was substantially reduced. At the federal level, three Supreme Court cases in 1993 and a change in federal law in 2000 placed some restrictions on the application of federal civil forfeiture. Civil forfeiture remains an area with a high potential for abuse, but as a consequence of changes at the state and federal levels, there are fewer stories today of the law’s misuse. Still, the possibility of the misuse of civil forfeiture remains, and there are concerns that the model created for drug enforcement is now being exported to a range of other crimes.
In the United States, police are at the front line in the war on drugs. Because drug enforcement requires that police seek out offenders, the number of cases they generate depends not only on how many dealers and users exist in a community but also on the resources the police commit to drug enforcement. If money for drug agents is cut, one can expect a corresponding reduction in the number of drug cases. For police, the size of the war is very much a reflection of the size of the budget. Those elements of the criminal justice system that follow—courts and corrections—do not have the luxury of deciding how many cases they will handle. For the most part, their workload is determined by the decisions made by police and prosecutors. Attention is now turned to their role in the war on drugs.
While each year, the FBI assembles data about the work of police agencies across the country, there are no comparable annual reports on the kinds and numbers of cases handled by state and federal courts. However, given the volume of drug arrests, it is safe to say that drug cases make a substantial contribution to the workload of courts. The handling of drug cases has led to two major developments affecting the courts, one from outside the court system (mandatory minimums) and the other from within (drug courts).
Mandatory minimum sentences are not new, as they go back to the biblical notion of an eye for an eye. Regarding drugs, the first U.S. mandatory minimums at the federal level were enacted in 1956 and continued until 1970, at which time they were overturned because they were seen as ineffective and unjust. At the state level, mandatory minimums were begun in New York and were specifically aimed at adult, steet-level drug dealers. Within a decade, a majority of states had followed suit. In the flurry of legislation passed by Congress in 1986, a new round of mandatory minimums was enacted out of concern that different judges were handing down very different sentences for similar offenses, with a particular concern about some judges being too soft on drug offenders. The idea was to take discretion out of the hands of judges so as to produce more uniform sentencing. The reality was a deeply flawed system that could be criticized on a number of levels, only a few of which will be discussed here.
First, mandatory minimums took discretion from the hands of judges, who are supposed to be neutral, but left discretion in the hands of prosecutors, who are not expected to be neutral. Sentences for similar drug offenses continued to vary widely, but this time they varied across prosecutors, who had the power to decide which specific charges were to be brought and consequently which sentences would apply.
A second criticism is that mandatory minimums are racist. This judgment is based on the federal system by which those arrested on crack cocaine charges face substantially harsher sentences than those arrested on powdered cocaine charges. The majority of crack cocaine arrestees are minority, while the majority of powdered cocaine arrestees are white. While racism did not appear to play a role in the initial decision to make a 100:1 distinction between crack and powdered cocaine, the result was clearly one of racial bias.
A third criticism of the system is perhaps the most serious. At the federal level, sentence severity is determined entirely by the weight of the drug, not by the actor’s role in the drug organization. Consequently, the “drug kingpin” and the lowly gopher who sweeps the floor of the drug house are to receive the same sentence, with an important exception: The only way to have one’s sentence reduced is to provide “substantial assistance” to the prosecutor—that is, provide names and information that will enable the government to prosecute others. Of course, the drug kingpin has considerably more information to provide the authorities. As a result, the kingpin is positioned to have his or her sentence substantially reduced, while the gopher who sweeps the floor is likely to receive the maximum sentence. By anyone’s calculus, this is an unjust arrangement.
As a change imposed from outside the judicial system and one that severely limits the power of judges to make decisions, it should not be surprising that judges have expressed strong objections to mandatory minimums. Mandatory minimums have had a substantial impact on the prison system by not only increasing the number of offenders sent to prison but also by keeping them there longer, contributing to an imprisonment rate in the United States that is the highest in the world.
Drug courts represent a change in the role of judges and courts that grew from within the judicial system. There are two types of drug court—case flow courts and drug treatment courts. Case flow courts began in the 1970s in New York City and have since arisen throughout the country. Case flow courts handle only drug cases, and in exchange for a quick guilty plea, the accused is offered a much reduced sentence. The objective is to move cases through quickly, and in this case, flow courts appear to succeed. More recent is the rise of drug treatment courts, which began in Miami, Florida, in 1989, when a local judge grew tired of seeing the same drug offenders appear in court repeatedly. His model has since been copied across the country so that today, there are more than 1,200 drug courts operating in the United States. While there are many variations, the basic model has several key features: (a) There are frequent random drug tests, and successful completion of the process requires the offender remain drug free; (b) a judge is specifically assigned to the drug court as are drug court staff, including probation, the public defender, the prosecutor, and treatment staff; (c) all members of the drug court staff receive extensive training in the nature of addiction and the requirements of successful drug treatment; (d) treatment occurs in phases, beginning with detoxification, followed by intensive group counseling, and then by continued drug counseling with the addition of such issues as anger management, job-seeking skills, and parenting; (e) although completion of the program can occur in as few as 12 months, 18 to 24 months is more common because it is understood that relapse will be part of the recovery process for many offenders. Offenders who relapse are identified through frequent drug screens, and the court will quickly respond with immediate and escalating penalties for those who test positive for drug use; and (f) upon completion of the program, there is a graduation ceremony and the offender’s record is sealed.
There is some debate about the effectiveness of courtbased treatment. It appears that drug courts show some success, but it is likely due to frequent monitoring with immediate sanctions rather than to the particular treatment approach utilized. Success is also enhanced because the most serious offenders—those with a history of violence, drug dealing, or several prior imprisonments—are often not eligible for drug court.
The long-term nature and impact of drug courts remain to be seen. The criminal justice system is, at its heart, a system designed to punish offenders. Past programs (such as probation) that initially emphasized treatment and helping services for offenders have, over time, morphed into systems whose primary function is monitoring and punishing. Only time will tell if a similar transformation occurs with drug courts.
Much like the courts, the U.S. prison system has little voice in the number of cases it must handle. Both the number of inmates entering the system and the length of time they will stay is beyond the control of prison administrators. Like the courts, there is no annual reporting of the types of crimes for which individuals are imprisoned in state and federal institutions combined. It is clear, however, that drug offenders comprise a substantial proportion of prison inmates in the United States. At the federal level, for example, drug offenders make up about 60% of prison inmates, and nationally, both the number and the rate of people in prison is at its highest level in history.
To focus only on the number of inmates in prison on drug-related charges misses the bigger picture. Many who are in prison on other charges have a drug problem. Drug-using offenders enter prison with a host of other problems that burden the system. They are likely to have more health-related problems than other inmates, including HIV and hepatitis C. Drug-using offenders are also more likely to have mental health problems. In addition, inmates with a drug problem may try to smuggle drugs into the institution.
Prisons have responded to the surge in drug-using inmates through a variety of programs. Most institutions allow for 12-step programs, such as Alcoholics Anonymous and Narcotics Anonymous. Beyond that, some institutions have set aside separate units as therapeutic communities in which everyone living in the unit is involved in drug treatment. Some states have gone even further and set aside entire institutions as treatment facilities.
Predicting the future is always a challenge, and this is particularly true regarding illicit drug use. While many users have their favorite drug, users are notorious for using whatever drug is most available, making interdiction difficult as users switch from one substance to another. In an era when television and print media are flooded with advertisements for legal drugs that will treat any condition, real or imaginary, it’s difficult to see a time when America will truly be drug free. It is not surprising that the most recent trend is the illicit use of legally manufactured prescription drugs.
Tackling the problem of illicit drugs requires recognition of differences between experimental or casual users and hard-core addicts. Something like an 80-20 rule seems to be true for illicit drugs—20% of drug users consume 80% of the drugs. That hard-core 20% is also the group most likely to be involved in crime and to come to the attention of the criminal justice system. That group is also least likely to respond to prevention or treatment programs. The criminal justice system may be a useful tool for identifying this hard-core group, but the important question is what happens to those hard-core users after they have been identified. The rise of drug courts and therapeutic communities in prisons represents responses to the problem, but a frustratingly large number of new drug offenders continue to enter the system. This suggests that the United States cannot arrest its way out of the drug problem and that more must be done to prevent drug use and drug-related crime.
From the beginning, Americans have chosen to define the drug problem as a criminal justice problem. Consequently, no other issue demands so many criminal justice resources and causes so much controversy. Aggressively enforcing drug laws can mean using controversial tactics while placing a heavy burden on the courts and correctional system. While the public is generally enthusiastic about tough enforcement, it is less willing to provide the tax revenues to properly fund the demands that drug cases place on courts and prisons.
Some argue for viewing the drug problem as a medical problem, as is done in Britain. Others argue for a social work approach, as is used by the Dutch. In many ways, these three approaches—the American, the British, and the Dutch—reflect broader cultural differences in how these societies view social problems. Those hoping for a radical shift in the American approach should not hold their breath, for it is deeply engrained in the collective psyche.