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Even as Legal Weed Gains Acceptance, the 'War on Drugs' Continues

By the time you’ve finished reading this story, at least five people will have been arrested for simple drug possession.

Kevin Nelson, of Bellingham, Washington, holds a sign outside Top Shelf Cannabis. He feels the legalization of marijuana will lead to less crowded jails and be less of a burden on the court system. (Ted S. Warren/AP)

A police officer pulled over Darius Mitchell, an African American, one late night in Jefferson Parish, Louisiana for breaking the speed limit. The police officer smelled weed in Mitchell’s car and called for a drug-sniffing canine to search the vehicle against his consent.

They were looking for pounds of weed, according to American Civil Liberties Union lawyers, but only found a single bottle of the opioid pain medication hydrocodone, apparently prescribed to his child’s mother. But this was in Louisiana, where incarceration has replaced sugar and cotton as king. So Mitchell was arrested for felony drug possession of the pills and faced five years in prison. He was acquitted at trial, a legal proceeding few can take advantage of; plea deals are the path most taken. But the stigma of being a suspected “drug dealer” stuck.

Mitchell’s story is recounted in a new report issued by the ACLU and Human Rights Watch called “Every 25 Seconds: The Human Toll of Criminalizing Drug Use in the United States,” which details how the “War on Drugs” continues to take prisoners despite recent reforms.

“[M]onths later [Mitchell] remained in financial debt from his legal fees, was behind in rent and utilities bills, and had lost his cable service, television, and furniture,” reads the report. “He still had an arrest record, and the trauma and anger of being unfairly targeted.”  

In another state—and with white skin—Mitchell may have been given the benefit of the doubt about that hydrocodone. At worst, he may have been given rehab for potential opiate addiction, as is now the norm in many places. But Mitchell became a casualty of a drug war fueled by the mass incarceration of African Americans for the pettiest drug violations.

Things could’ve easily turned out worse for Mitchell, too. The report also tells the story of Corey Ladd, an African American who was sentenced to 17 years in prison for possessing a half-ounce of marijuana in New Orleans. The stiff sentence was handed down in part due to Ladd’s two prior arrests for drug possession—one for the hallucinogen LSD, the other for hydrocodone, in small quantities in both cases. Ladd was hardly a drug kingpin.

Stories like these are more often the rule than the exception, according to the report. The extent of America’s incarceration fetish has been detailed exhaustively, most recently in Ava DuVernay’s documentary 13th. However, this 205-page report includes new data that show just how little things have changed since discussions about reforming drug laws and mass incarceration recently took off.   

“Despite shifting public opinion, in 2015, nearly half of all drug possession arrests (over 574,000) were for marijuana possession,” reads the report. “By comparison, there were 505,681 arrests for violent crimes (which the FBI defines as murder, non-negligent manslaughter, rape, robbery, and aggravated assault). This means that police made more arrests for simple marijuana possession than for all violent crimes combined.”

The top-line finding in the report is that someone is arrested for possessing drugs every 25 seconds in the U.S.—hence the report’s title. But here are a few more:

  • More than one of every nine arrests by state law enforcement is for drug possession, amounting to more than 1.25 million arrests each year.
  • On any given day at least 137,000 men and women are incarcerated for drug possession—roughly 48,000 of them in state prisons and 89,000 in jails, most of the latter in pretrial detention.
  • At the end of 2014, over 25,000 people were serving sentences in local jails and another 48,000 were serving sentences in state prisons for drug possession nationwide.  
  • African-American adults are more than two-and-a-half times as likely as white adults to be arrested for drug possession, despite using drugs at similar rates.
  • In 2014, black adults accounted for just 14 percent of those who used drugs in the previous year, but close to a third of those arrested for drug possession.
  • In 2014, black people were nearly six times more likely than white people to be in prison for drug possession.

In Manhattan, where the wolves and American psychos of Wall Street roam, African Americans were nearly 11 times more likely than white New Yorkers to be arrested for drug possession. This is despite crime having dropped heavily throughout New York City, even in historically black neighborhoods like Harlem.

Within the state of New York, drug-possession rates are much higher in counties with more racially diverse urban seats, like New York City and Buffalo. But no matter the county, in New York, African-American arrest rates for drug possession far outpace white arrests, as shown in the graph below.  

(ACLU/Human Rights Watch)

There have been a number recent criminal justice reforms passed to stem these trends, particularly in cities like New York City and New Orleans, where people of color have long suffered under onerous drug-arrest policies. Some of these reforms include the decriminalization of small amounts of certain drugs. Politicians and law-enforcement leaders have lately been treating opiate and narcotic pain-medication problems with public health solutions. And President Obama has boasted about granting clemency to a decent number of people incarcerated for non-violent drug-related crimes. But these measures seem to have only shaved the arrest and incarceration rates down marginally. From the report:

This report shows that although taking on parts of the problem—such
as police abuse, long sentences, and marijuana reclassification—is critical, it is not enough: Criminalization is simply the wrong response to drug use and needs to be rethought altogether. … laws criminalizing drug use are inconsistent with respect for human autonomy and the right to privacy and contravene the human rights principle of proportionality in punishment. In practice, criminalizing drug use also violates the right to health of those who use drugs. The harms experienced by people who use drugs, and by their families and broader communities, as a result of the enforcement of these laws may constitute additional, separate human rights violations.

The report calls for local sheriffs and police to refrain from arresting people for personal drug usage, and to stop frisking and searching people for drugs, especially if all signs indicate that these searches would yield nothing more than simple possession charges. If sheriffs and police officers must conduct these searches, the report recommends that they:

  • Charge individuals with the lowest-level offense supported by the facts, for example, for paraphernalia instead of possession.
  • Do not measure officer or department performance based on stop or arrest numbers, and do not set quotas or provide incentives for numbers of stops, frisks, searches, or arrests.
  • Work in conjunction with community members, drug treatment specialists, and mental health professionals to explore alternatives to arrest.
  • Incentivize/reward officer actions that prioritize the health and safety of people who use drugs.
  • Adopt model search-consent policies that include requiring police to have reasonable suspicion before seeking consent, and, regardless of the outcome of the search, requiring officers to provide a “receipt” documenting the interaction.
  • Require officers to specifically advise civilians of the potential perils of consenting to search and their right to decline consent, and require officers to secure written, audio-recorded, or video-recorded consent prior to conducting a search.
  • Regularly analyze and publish data on all consensual or nonconsensual stops, frisks, searches, observations, and interviews, aggregated by race, gender, age, and the officer’s basis for the encounter or action.

The report also recommends that local government entities pass laws that prohibit landlords and employers from discriminating against housing and job applicants who have drug possession convictions on their records. It also asks local policymakers to develop public-health initiatives that decrease the risks and harms of drug use and offer treatment for those with drug problems.

Such measures add up to outcomes that treat people as humans who’ve made mistakes rather than, as The New Jim Crow author Michelle Alexander says, as people who are “forever defined by something they once did in their lives.” We don’t define people who’ve broken speed-limit laws by their traffic infractions, then cut them off from help and services accordingly. Neither should we do so for those who’ve run afoul of draconian drug laws.

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