4 Reasons Drug Arrests Matter–And 2 Reasons Why They Don’t

A few weeks ago the FBI released its estimate of 2014 arrests and it appears that we are still, as a country, addicted to drug arrests–particularly marijuana arrests. More than 1.5 million people were arrested for drug offenses in 2014. I’ll start with one of my reasons why this doesn’t matter. Count me among those who know that drug sentencing is not the only reason our prisons and jails are full–let all drug offenders out and we’d still have one of the highest incarceration rates in the world, which means we have some tough work to do if we really want to reduce mass incarceration–but that doesn’t mean that drug arrests are irrelevant. Here are four reasons why drug arrests themselves are worth spotlighting, with an initial caveat–drug arrests encompass a wide variety of activity. Simple possession of a limited amount of pot could account for a drug arrest; so could trying to sell meth to a kid. For this analysis, then, I’ll focus on the single biggest contributor to drug arrests: marijuana possession arrests, which account for almost forty percent of all drug arrests.

Reason 1: Racial disparities. Marijuana possession arrests are wildly disproportionate on the basis of race, as any reader of Michelle Alexander knows. If you assume that white drug usage rates are roughly the same as those of people of color (and you can do your own math here), there’s no making sense of the fact that drug arrest rates affect communities of color at such a high rate. One way to equalize this, of course, would be to arrest more white people. I think if we did, we’d start to see the political calculus changing on drug arrests (so watch out, those of you who attend Phish concerts). But at the very least this poses some legitimacy problems for law enforcement, and, as Tom Tyler reminds us, legitimacy is the key to community cooperation, and community cooperation is the key to solving crimes.

Reason 2: Drug arrests themselves are disruptive, and can be criminogenic. People who are arrested will spend some amount of time cooling their heels in jail, which might mean job absences (and job losses), or, if there’s money bail assigned, either financial hardship (many people finance their bail with non-refundable bail bonds) or an extended stay in jail because they can’t pay to get out. So even for people who aren’t convicted–and thus don’t show up in mass incarceration statistics–drug arrests can impose significant costs on them. For juveniles, even the very act of arrest itself can create a self-fulfilling prophecy: youth see themselves as lawbreakers and their deviance is amplified.

Reason 3: Drug arrests can contribute to incarceration via violations of supervised release (probation and/or parole). This might actually be one place where drug offenders are undercounted. Being arrested for a drug offense, no matter what it is, can often result in the revocation of supervised release–but the official justification for the sentence that is imposed is not the new offense, it’s the violation of the terms of release. Such incarceration terms aren’t, therefore, tallied as drug offenses, but, say, as the imposition of the original, suspended sentence (in the case of the most common forms of probation) or as parole violations, parole violations with new terms, or simply as a return to prison (in the case of most forms of parole). Whether that’s desirable depends, in my view, on how the drug offense of arrest relates to the underlying conviction. It’s not clear that marijuana use is related to any more serious offenses or is in itself a necessary sign that rehabilitation didn’t take. It seems to me that at least for some drug arrests, a term in prison following a parole revocation is a reaction unlikely to rehabilitate–or at least unlikely to be worth the cost.

Reason 4: Time. Drug arrests take up officer time and court time, time that could be spent elsewhere. Any arrest takes up officer time in the field, in transporting someone to the station house, and in the station booking and processing them. Even the bulk processing of arrests in court takes up the time of all participants. These hours are hours not spent doing other things that, in the case of police, might be more useful: community caretaking, solving cold cases, or more closely monitoring jail conditions.

As promised, there is a second reason drug arrests don’t matter: the argument that drug arrests aren’t the point, they’re just another way to “get” people who you can’t otherwise get. I teach criminal procedure (among other classes), and the way our system works, what someone “really” does depends on what you’re “really” able to prove. If you can’t get someone on what you think they’re doing, they’re not guilty of it. (Never mind that there is no coherent way to define a “real” offense in practice) The Al Capone “we knew he was a gangster but we got him on tax evasion” cases are zebras, not horses. The horses are the thousands of people arrested in New York City for possessing marijuana in open view when the police asked them to empty their pockets and, when they did, found marijuana (pdf, page one).

So what’s the way forward? One way, of course, is to stop treating drugs as a criminal justice problem, and instead to consider it a public health problem. Another is to really get solid evidence about whether arresting someone for drugs gives us the kind of return on officer time we expect–or whether these arrests actually harden anti-social attitudes. The main takeaway, though, is to realize that the drug war is not over, even though we have legalization on the state level. Transitioning to an era where even marijuana is treated differently will take time; national trends will gloss over significant regional variations. And focusing on sentencing alone will miss the significant harms of arrests themselves.

Author: W. David Ball

W. David Ball is an Associate Professor at Santa Clara School of Law. He writes and teaches primarily in the fields of criminal law and criminal procedure, with a special focus on sentencing and corrections. He also serves as the Co-Chair of the Corrections Committee of the American Bar Association.

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