The Drug Prisoner’s Dilemma

-- By AlexKonik - 02 Jun 2012

Drugs are big business. The legal kinds generate billions of dollars in revenue for companies clearing the next big clogged artery. The illegal kinds implicate just as much money, but the interested parties are more diverse. Illegal suppliers enjoy inflated prices from governmental supply suppression; police departments enjoy inflated budgets to combat the criminalized activity; prison contractors enjoy unprecedented prison populations that are increasingly confined, fed, and otherwise handled by private industry; citizens enjoy gainful employment through the confining business; politicians retain their offices by cleaning up the streets and being tough on crime; and recreational drug users retain their access under a porous enforcement scheme that keeps drugs eminently available.

Although recent state moves considering limited medical use of marijuana hint at a new direction, Drugs continue to inhabit a forbidden place in American society. A policy of looser heroine punishment in favor of more treatment resources will lose if it is based on sound principles of economics or historical lessons. The War On Drugs will not end with a reasoned debate.

There may be a bottleneck in the War On Drugs’ support loop, and necessity could be decisive where habit and social mores only perpetuate the status quo. The kink may be in prosecutorial and court resources. While a long list of parties benefit from the War, prosecutors and courts bear a substantial cost burden. Unlike prisons and police, increased funding to these administrative departments are unattractive, invisible to the public, and taste more of bureaucracy than justice. The lobbying interest in expanding judicial appointments and DA budgets is less focused than the prison lobby and commands less force than the public’s concern with safety. In comparison, at least, this public function sees the most cost and least gain from the War.

Facing tough budgets and short time, the adjudication of an ever-expanding volume of drug cases survives on plea bargains. Virtually no one goes to trial; this is by design. Facing limited resources, prosecutors must prioritize the cases they bring and forecast the resources they demand. A trial will be a much larger investment than a plea, but one hopes that the expected cost is balanced with the severity of the crime. With the huge volume of the docket that relatively minor drugs crimes occupy, there exists real potential to exacerbate this adjudication bottleneck of the War. Drug criminals, acting in concert, could put serious pressure on current enforcement policies by refusing to accept pleas that carry conditions other than treatment. By bringing every question to a jury that faces a stiffer plea than treatment, drug criminals will fundamentally change the equation prosecutors face when deciding who and how to prosecute. Where the political recourse is destined to fail, collective action can succeed in changing practiced policy.

The mass incarceration of drug offenders is successful today only because the victims are coerced into helping the system function. Not only the judge and jailor, but the prisoner and his lawyer grease the cogs of the very machine that imprisons him. In one respect at least, the indicted masses are in a position of power. Though today, through individual acquiescence, they abandon their power in a way that Thoreau feared: “a minority is powerless while it conforms to the majority; it is not even a minority then; but it is irresistible when it clogs by its whole weight.” Like he and Mario Savio called for in other contexts, real change is possible if you “put your bodies upon the gears and upon the wheels, upon the levers, upon all the apparatus, and you've got to make it stop. And you've got to indicate to the people who run it, to the people who own it, that unless you're free, the machine will be prevented from working at all."

Given the number of those charged with drug crimes, the tremendous weight burdening the criminal system already today, the enormous difference in cost between a plea and a trial, and the potential to bring even more claims demanding a speedy trial as the docket continues to backlog, prosecutors will have little choice as the gears of the machine clog. If prosecutorial discretion does not de facto institute a policy change to treatment as punishment to drug crimes, a legislative response loosening punishment may be forced.

There is, of course, the very large hurdle of achieving collective action. The story of oppression is so often one of preventing coordinated action. Slavery in the United States was helped by criminalizing education, and legally retarding collective bargaining helped in class conflicts. When benefits of action are not realized until a critical mass is reached, early actors are punished severely.

Victories have come through collective action where, as here, individual incentives made predicting success dubious. Martin Luther King, Jr. led a civil rights movement where many were individually harmed beyond the benefit they could expect to personally enjoy. The NAACP Legal Defense and Education Fund orchestrated a coordinated plan of targeted litigation that has proved a successful model for other impact litigation causes since. Ideally, a coordinated group makes decisions that are best for cause; some individual grievances may be sacrificed to advance the cause, hopefully with few defections.

The War On Drugs does not contain the same obvious moral defect that abolitionists and civil rights leaders fought against. Although its enforcement is the most recent step in a long history of racial segregation, the social understanding of the underlying criminal activity (using drugs) is less offensive than punishing skin color.

In this realm of social policy where economic interests align with guiding habit and emotion, we can look for a weakness in the system to force change. The sheer size of the War On Drugs creates its own vulnerability; the system cannot sustain itself if the subjugated put their bodies upon the machine in resistance rather than lubrication.

(I remain interested in working on the paper and topic)

-- AlexKonik - 14 Feb 2012

I like your piece, but just a note: I was having a conversation the other day with this girl who's an attorney for the Orleans Public Defenders office and I asked her if she thought plea deals should be abolished. She responded, "I can't deal with that academic BS. My clients are 17-year-old kids who are facing 40 years in prison for possession. Telling them to take their cases to trial is not an option." Your essay acknowledges this fact but doesn't answer it. How are we supposed to tell 17-year-old kids to take their chances at trial? If we can't, isn't this all just academic BS?

-- JaredMiller - 27 Jun 2012