This short book chapter by three of America’s leading scholars of law, policing, and social inequality, Katherine Beckett, Monica Bell, and Forrest Stuart, may be easy to miss because of its publication in a specialized edited volume on drug policy, policing, and harm reduction, rather than the prominent law or sociology journals in which these authors frequently publish. That would be a shame however (thus this jot), because it packs some crucial insights about our current conjuncture in criminal justice reform in the United States, with major implications for how we consider the future.
First, it is a helpful corrective to the recent revisionist accounts of the war on drugs. These revisionist accounts have challenged what they take to be an exaggerated estimation of the significance of the war on drugs in producing mass incarceration by some of the most influential narratives on the latter. (I’m thinking here in particularly of John Pfaff’s very important book Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform (2017) and its critique of Michelle Alexander’s a The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2012).) Pfaff corrects the shorthand logic that equates mass incarceration with the war on drugs by demonstrating that most drug sentences are short compared to those for violent or serious property crimes, and that sentences for drug crimes, especially possession, only accounts for a fraction of the growth in incarceration we experienced during the era of “mass incarceration” (the end of which we are still awaiting).
Beyond Harm Reduction Policing however is an important corrective to that corrective. It reminds us that regardless of its contribution to the overall incarceration rate, a punitive response to drug crimes beginning in the 1980s was one of the defining features of the punitive turn of the late 20th century, and one that had a particularly major impact on communities of color. Drug arrests, for example, grew more than fourfold between 1980 and 2006 (when they peaked). Such arrests did not mean that someone would end up in a cage. The growth in supervisory sentences was far greater, touching more than a million people a year at its peak compared with 400,000 with a sentence of incarceration in jail or prison. Nevertheless, each one of these sentences represented an exposure to physical control (and existential threat) by police officers, and at least a short exposure to jail in most cases.
The impact of this was hugely concentrated on Black Americans. Between 1980 and 2006, the rate of arrest for Black Americans went from 5 per 1000 persons to more than 15 per 1000, while the rate for White Americans grew from 2.2 to 5 per 1000. Each one of these arrests, even if it did not result in a sentence of confinement to a jail or prison, had specific and almost certainly negative effects on the legal consciousness and economic prospects of the person arrested.
A second important point is that while the peak of arrests may have been reached in 2006, it remains very elevated, and far above the number of arrests in 1980 (by about a million extra arrests per year). The authors point out that suburban and rural law enforcement agencies are significant sources of these high arrest levels. Much of the perception that the “war on drugs” is over has developed in large cities, where attitudes toward harsh drug policies began shifting toward “harm reduction” as early as the 1990s. In the suburbs and in rural areas, political tolerance for drug users remains low and support for the use of criminal sanctions to discourage it remains high.
The recent pattern of growing suburban poverty and urban gentrification means that these harsh policies remain highly concentrated on communities of color, particularly economically marginalized Black communities. These suburban and rural law enforcement agencies feed arrests into prosecution offices that are less likely to have seen a “progressive” trend than their urban neighbors. Because state laws remain remarkably punitive toward even drug users, and especially punitive toward drug sellers (a frequently ambiguous distinction), these defendants face harsh consequences, especially if they do not agree to a quick guilty plea. Much of the perceived reduction in the “war on drugs” has come through the use of discretion by more progressive urban prosecutors, leaving the punitive armory of our penal codes largely intact.
Many have also assumed that the recent refocusing of the public perception of the drug crisis from “crack cocaine”, largely associated with Black communities, to opiate addiction, largely associated with whiter rural and suburban communities, was yielding a more sympathetic approach to those caught in addiction and more readiness to offer treatment rather than punishment. A closer look, offered in the chapter, suggests that there may be more concern with trying to help those willing to seek treatment, but also growing interest in punishing harshly those perceived as promoting these overdose prone substances.
Third, the chapter offers an important and critical gaze at the first wave of reforms that are taken to have tempered the harshness of the war on drugs. The authors offer a compelling case that reforms address both the harms of the punitive system but also the harms of unmanaged addiction and unregulated drug markets. Perhaps the most popular reform has been the “drug court,” about which the authors are particularly (and persuasively) skeptical. These programs typically give judges the power to offer the dismissal of criminal charges for those defendants whose crimes were drug offenses or driven by drug addiction, and who successfully complete court-mandated programs–typically abstinence-based treatment programs. But these judges retain and use the power to criminally punish those who relapse during treatment. These programs often hold unrealistic expectations of whether participants can achieve abstinence without relapses, and punitive attitudes toward those who do relapse. Overall, the drug court movement has added to the power of criminal courts rather than reducing their punitive potential.
The authors also offer a critical but more positive view of the leading alternative harm reduction approach, pioneered in Seattle and San Francisco under the acronym LEAD for Law Enforcement Administered Diversion. In its original version, LEAD allowed police to use their discretion to place people arrested for drug crimes (or drug related property crimes) directly into treatment programs without leaving the power to prosecute over their heads (participants could be prosecuted for new crimes but not for their original arrest offense). This diversion approach is superior in recognizing the likelihood of temporary relapse into drug use and the need to truly remove the threat of punishment. The main critique of these original programs was that they gave to police the power to select who could participate, leaving the major sources of drug arrests to be the major determinants of who received diversion.
The newest versions of the program, currently under experiment in Seattle, take this power away from the police and give it to public defenders, social workers, and families. Courts now operate as the gatekeepers. This is not without punitive risk, but it also assures transparency. The best version includes close monitoring of the pool of people arrested and those actually selected, to detect racial bias that may disfavor people of color, and particularly Black people, who may be perceived as less amenable for treatment. These new versions of LEAD are an important sign that abolitionist practices can be realistic as well.
