Continuing the Punishment Discussion

A commentator on my previous post stated:

Actually, you make a good case for real punishment for the small users -- as long as the demand is there, new dealers like you say will step in to fill the demand. How do you deter the demand?

Well, the answer would be to impose massive penalties for possession as well as dealing.  Perhaps someone with a first time possession charge could be ordered into a program like drug court but failure would be punished just as massively or more.

It's a solution which is deceptively simple yet has great implications and is not politically viable.

(1)  It would cause a "lost generation."  In short order, a large number of young males would suddenly be removed from our society for a long period of time.  Assuming the patterns I see among my clients hold true, a large majority of these young men would be Black.

(2)  Costs of maintaining all those people in prison would be a heavy burden on governmental budgets.

(3)  The sentences would have to be so large that they would be draconian and contradict our sense of what an appropriate sentence should be.  I'm talking residue=2 years, 1 hit=5 years, 2+ hits weight=10 years, 2d conviction=15 years, and possession with intent 15 years (30 years for a second offense).  Do I think that any of those sentences are proportionate, fair, and just?  No.  But that would be the point.

(4)  As dealers and users realize that they are facing massive sentences the level of violence would rise (probably exponentially).  Currently, dealers/users know that carrying a gun with drugs can lead to large penalties and therefore, a surprising number do not.  With these kind of sentences they are not likely to worry much about the gun charge and much more likely to fight back when the police try to take them.

(5)  It would reach into the middle class (you know, the voters).  I don't know what percentage of middle and upper middle class kids and young adults mess around with drugs experimentally or are social users but I know they are out there.  I suspect the number is high enough that when they started getting busted and sent away for long periods of time the disproportionate sentences would be noticed and cause an uproar.  After all, it might be okay to send "Reb" and "Biggy-S" (you know, "those people") off to prison for 10 years but not Robert Fensworth IV, college junior, pre-law, elder son of a hardworking upper-middle class family which has all the right connections.

Of course, at least at first there would be the normal discretionary enforcement concentrating on "those people."¹  However, after a couple of years "those people" are going to start getting scarce and law-enforcement is going to have to hunt somewhere (or start drawing down force levels and that ain't likely).

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Why would this work?  Because in a very short order it would decimate both the chain of supply and provide a strong disincentive for anyone using or beginning to use.  Everyone would be screaming bloody murder about how wrong it is that Joe is going to prison for 10 years and how that is absolutely an unfair punishment level (because it is; this doesn't work if the punishment is proportionate).  As I defended Joe for the 4th time as a court appointed client (yes frequent fliers are a rule rather than an exception) on a personal level in defending this poor guy who never really hurt anyone, I'd be just as upset.  In order for this to work at a macro level it would have to be unjust over and over and over again at the micro level.


Personally, I don't think this can ever be the system put in place.  The economic and social impact would be too much.  The strength of will it would take to lock up (and pay for) an even greater portion of our population than we currently do for much longer than we currently do just isn't there.  As well, imagine the backlash from everybody under the sun.  Not only the usual suspects (ACLU, NACDL, NAACP, etc.) would step forward to defend people's rights not to be trampled under a system dedicated to sacrificing them in order to reach a better world; there would most likely be a backlash among the voters as people they knew started going to prison for loooonnngg periods of time (the ends justifies the means not being a popular sentiment when it applies to you and yours).


So, we revert to doing things at a micro level.  Programs, like drug court, are put in place to help the individual get out of the cycle - and they seem to lower the recidivism rate somewhat.  The judge (in the article noted in the last post) is probably right in that lesser or non-jail sentences for small time offenders accomplish more than sending them away.  People who have not acclimatized to jail fear it far more than those who have gotten used to it and act accordingly.  As well, I truly believe that less jail time would stop the cross-pollination which allows many a small dealer to become a mid-level dealer (or more); however, I must admit that I think the criminal system would evolve other avenues were this one denied.  If you cannot, or will not, make the sacrifices which would be needed to accomplish large scale change you must work within the current system to minimize the harm to society at large by diverting as many as possible away from the path they would otherwise end up on.

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¹  Don't believe discretionary enforcement occurs?  One example often cited is the difference between the punishment for powder and crack cocaine in the federal system.  However, I prefer even more down to earth examples.  Go check and see where your local police do their DUI checkpoints.  I'd bet dollars to doughnuts that a great majority of them don't take place on the one road leading into "Charlesworth on the River, A Gated Community."  They take place at roads leading to "Roadrunner Trailer Park."  Examples of this sort abound.