The Pathos Of The War On Drugs

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As a criminal defense lawyer, a great deal of my practice involves the defense of those who are caught up in the injustice of the Drug War. Even after three decades of drug defense, I am daily stricken by the futility, absurdity and unfairness of this monumental blunder, especially with respect to marijuana. 

Recently, I appeared at the sentencing date for a man charged with conspiracy to distribute marijuana. No one was hurt in the supposed scheme. No vehicle was driven in a potentially dangerous manner. My client was charged with nothing more than being part of a scheme to distribute the substance. The fact no one was hurt in any way while alcohol and tobacco claim the lives of hundreds of thousands a year dominated my mindset that morning.  The fact I found it almost comical when I watch TV and see pharmaceutical commercials listing the serious side effects – including death—of substances that taxpayers don’t pay to have cops, judges, jails and prosecutors focus on weighed heavy on me as well.

I’m no stranger to police culture either. The relationship between that culture and the War on Drugs haunts me as well. Oddly enough, because I have had some level of success in civil rights matters, police– especially police who blow the whistle on unconstitutional practices–  have worked with me to a significant degree.

I’m painfully aware of the fact police agencies will unhesitatingly deny that very often cops end their shift only to get drunk with their fellow public servant buddies and then drive home smashed. Unlike the lay public, when these off-duty police drivers are inevitably stopped for erratic driving their police credentials are a true get out of jail free card.

On the other hand, non-violent, non-dangerous marijuana users get sentenced to jail, are disqualified from student loans, are evicted from public housing or get deported (our xenophobia in immigration matters seems implicated by this latter fact).

No doubt, especially in precarious economic times, we are in too deep: too many people and too many institutions survive by locking people up or otherwise limiting freedom on mindless pretense. We have become a scarlet letter society and need a population of untouchables to support the dynamic of that society. The Drug War is a major aspect of that society.

Whether the need to limit liberty in the land of the free is merely economic or something more pathologic is certainly an intriguing question. It can’t be a coincidence that we lock up – even kill — more people than any other “advanced” nation or that almost all of our penalties; drug related or not, are draconian.  Instead of being stewards of mercy or fairness, we have chosen to become a societal dominatrix.

Maybe it’s my pathology, but all of these thoughts spun in my head recently when I stood up with my client for the supposedly heinous offense of conspiring to distribute marijuana. I did all of the lawyerly things. I pointed out that my client was an asset to society with a decent job. I pointed out that he had no significant prior record. The judge, no bleeding heart liberal, listened politely. But then I couldn’t help but say that in the long run I couldn’t help feel the process we were engaging in had little substance.

I said, “judge, we know that in five, maybe ten years at most, we are not going to be arresting people over marijuana.”  The prosecutor didn’t object or verbally disagree.  It was also the only rise I got out of the judge as he parsed his lips and nodded in agreement. He gave my client the minimum amount of probation.