Enforcement of Drug Laws: Soft Power vs. Hard Power

Dealing with crime can become complex if society insists on creating laws to prevent behavior that a large fraction of the population believe is harmless. If a legal statute creates a situation where millions of people are law breakers, how do the policing agencies respond?

For this discussion we will dip into the wisdom of William J. Stuntz and his book The Collapse of American Criminal Justice, and that of Michelle Alexander and her book: The New Jim Crow.

As an example, consider drivers on our modern multilane freeways and interstate highways. Officials have specified maximum speed limits that most drivers consider too low. They know from experience that they can drive safely above this limit, so they do. And everyone does it. How should the highway patrol officers respond?

Most policing agencies default to what might be called "hard power" solutions. Hard power in this case means stopping speeding motorists and fining them for breaking the law. The hope is that others will observe the situation and decide to obey the law. But when faced with many thousands of lawbreakers, who do you single out for a fine? The core dilemma that derives from such situations is that law enforcement is necessarily up to the discretion of the individual policing agent, and thus inherently discriminatory.

An individual who is stopped and given a citation can rightly say "Why me? A lot of people were driving faster?" Police can have various explanations for why they chose to target a given person. It makes sense to target the few individuals who are driving at outrageous speeds, but they are hard to catch and one runs the risk of endangering one’s own life and that of innocent drivers in such a pursuit. Often there is some other characteristic that can be interpreted as a breaking of the law such as a tail light that is not working or a license plate that is out of date that is determinative. This is a relatively harmless form of discrimination if it is truly random. As we shall, see not all discrimination is random, and it is definitely not harmless.

Soft power approaches often involve an awareness of police presence as a means of discouraging unlawful activity. Instead of hiding from view and darting out to nab an unlucky driver, one could have patrol cars cruise the freeways at the speed limit (assuming they could constrain themselves). Not many people would chose to speed past a highway patrol car. This effectively limits the opportunity to break the law and does not involve arbitrary punishments.

We have had experience with other attempts to control what are viewed by most as victimless crimes. Stuntz compares the manner in which Prohibition was approached as a law-enforcement issue with the current manner of addressing the "War on Drugs." He might describe the approach to prohibition as a half-hard attempt. The law itself targeted only producers and distributors of alcoholic beverages. Home and religious use was not considered a crime. The nation was also given the chance to vote for the creation of this law with a constitutional amendment. And when the results of the law were deemed unacceptable, they had the opportunity to rescind the law with another amendment.

The War on Drugs was created by fiat of the Reagan Administration and had political motivations. It arose at a time of great concern about rampant crime, and politicians of all stripes jumped on board. It was decided early on that the term "War" was to be taken literally. It was also decided that both users and sellers would be targeted.

Drug use was nearly constant at about 10% for whites, blacks, and Hispanics. That means that today there are about 30 million lawbreakers out there. Who do you pick to target? Stuntz tells us who was selected.

"Discretion and discrimination travel together. Ten percent of black adults use illegal drugs; 9 percent of white adults and 8 percent of Latinos do so. Blacks are nine times more likely than whites and nearly three times more likely than Latinos to serve prison sentences for drug crimes."

Alexander tells us how this obvious discrimination was institutionalized and how it has affected the targeted black population. We will just dwell on a few points here and devote more time to Alexander and her excellent book at a later time.

The War on Drugs gave new meaning to the term "hard power." Funding grants were provided to local police agencies in what Alexander calls a "bribe" in order to induce them to participate. They were essentially paid to arrest people on drug charges. As with all outside funding sources, the localities began to depend on it and needed to show a sufficient number of arrests in order to renew their funding. Legislation also gave law enforcers the right to keep anything confiscated in a drug raid—a license to steal in many cases. The military was tasked to assist by making military weapons and intelligence available to local law enforcers. The assembly of SWAT teams became common. The major function of SWAT teams seems to be to conduct violent assaults in what should be simple drug raids—often on innocent people. Police were encouraged to use routine traffic stops as a means of interdicting drugs. Congress contributed to the war-like environment by created extremely harsh penalties for simple drug possession crimes. This was definitely a new way of enforcing the law.

At the same time, the courts gave essentially carte blanche to police and prosecutors to use whatever means necessary to send people to prison. And if your goal is to arrest and send to prison large numbers of people, where do you go hunting? Whether from conscious or unconscious racism, or as a business decision (number of prisoners per unit of effort), or as simple laziness, you target the population least able to defend itself—black neighborhoods.

Why hassle someone who might turn out to be somebody important, or someone who might actually be able to retain a lawyer? The system has become an assembly line whereby prisoners are brought in off the street, read their rights, and threatened with many years of imprisonment. Occasionally a lawyer is assigned but they have little time to do other than look for procedural defects in the arrest—there is no time to attempt to address guilt or innocence. The defendant might be told he is accused of a crime with a 20 year sentence, but if he pleads guilty to a lesser charge he only has to serve 3 years. That is the admitted purpose of harsh penalties—to induce people to plead guilty to a lesser charge. And it usually works. Think of how much time and money that saves the local government—and they don’t even have to bother proving guilt.

The system has been very efficient in processing blacks—mostly young males—into the status of criminals. Millions have been pushed through the system. So many have been processed that the costs of incarceration are beginning to exceed any attainable budget. States are discussing releasing early those who they had deemed a danger to society merely to save money.

Hard power methods never work except for the few cases of individuals who are in fact psychopathic and should be separated from society. It is encouraging to note that police forces are beginning to realize that they must change their ways and are trying soft power methods.

An article in The Economist focuses on one approach that has been successful.

"Police watched seven people sell drugs in Marshall Courts and Seven Oaks, two districts in south-eastern Newport News, in Virginia. They built strong cases against them. They shared that information with prosecutors. But then the police did something unusual: they sent the seven letters inviting them to police headquarters for a talk, promising that if they came they would not be arrested."

The goal was no longer just to arrest people—the goal was to stop them from selling drugs. The intention was to use social capital to exert pressure on them to change their behavior.

"Three came, and when they did they met not only police and prosecutors, but also family members, people from their communities, pastors from local churches and representatives from social-service agencies. Their neighbours and relatives told them that dealing drugs was hurting their families and communities. The police showed them the information they had gathered, and they offered the seven a choice: deal again, and we will prosecute you. Stop, and these people will help you turn your lives around."

This approach is known as Drug Market Intervention (DMI) and is attributed to David Kennedy, a criminologist at John Jay College in New York. Why the switch to his methods?

"Traditional drugs policing targets both users and dealers. This poses three main problems. First, low-level dealers are eminently replaceable: arrest two and another two will quickly take their places, with little if any interruption to sales. Second, it tends to promote antagonism between the police and the mostly poor communities where drug markets are found. Arrests can seem random....In some neighbourhoods, prison is the norm, or at least common, for young men. Police come to be seen as people who take sons, brothers and fathers away while the neighbourhood remains unchanged."

And the most important reason of all:

"Third, prison as a deterrent does not work. If it did, America would be the safest country on earth."

The philosophy behind Kennedy’s approach is to shut down the overt marketing of drugs and eliminate the undesirable outsiders that it attracts.

"Once these [drug markets] are entrenched, a range of problems follow: not just drug use and sales, but open prostitution, muggings, robberies, declining property values, and the loss of businesses and safe public spaces."

The goal of DMI is to restore health to community life. The police must play a continuing role for this to occur.

"After the first call-in, police maintain a visible presence in the targeted neighbourhood. Recalcitrant dealers are arrested and swiftly prosecuted (two of the four no-shows in Newport News have been arrested; the other two are fugitives). Complaints by citizens are dealt with speedily, to let locals see that the police respond and want to keep the area safe. That, in turn, makes locals more likely to call the police with complaints."

This procedure was first used in High Point, North Carolina in 2004. Since then it has been tried by more than 30 other communities. Will Newport News be successful in its attempt?

"It is still too early to forecast success, but on a recent weekday afternoon Marshall Courts and Seven Oaks were quiet and peaceful. Children played outside and people sat out on their porches. High Point’s market was shut down eight years ago. It has still not reopened."

This emphasis on maintaining a community presence is actually a return to traditional soft power methods that were once common in policing. Let us hope that more communities will find their way back.