Heads turn when a former cop of nearly 35 years suggests that the government should offer heroin addicts their drugs in a controlled setting rather than arresting and prosecuting them. Yes, Uncle Sam would supply citizens with heroin, folks! That is just one of many ideas Major Neill Franklin, the former Maryland state trooper and Baltimore City police officer, shared at a recent Baltimore Circles Of Voices gathering as he spoke on behalf of Law Enforcement Officers Against Prohibition (LEAP) about ending the drug war. To a veteran public defender, it's music to my ears.
Just as Donald Trump takes office, the "other side" seems to have finally arrived at the reform table of drug policy debate. Some of those who originally "declared" war have begun to adopt a more progressive agenda. Criminal justice reform—be it changing drug policy, ending cash bail, or eliminating sentencing disparities—reaches a tipping point when prosecutors and law enforcement officials come to their senses and join leaders for change. Then, lawmakers start listening. That's why movements like Justice Reinvestment, a national push for smarter, less punitive sentencing for certain offenses, have worked. We still have a way to go toward serious drug reform and the new presidential administration casts doubt over whether any progress will be made in the coming years. So, I'd suggest some tactical maneuvering.
With his message, Major Franklin highlights the endless costs of the war on drugs, which is really a war on people, specifically African-Americans, in our country. I attribute my career, spent entirely as a public defender in Baltimore City, to the war. Besides handling drug cases, I have to contend with irreversible criminal records, a lack of alternative sentencing options, a dearth of mental health and drug treatment programs, mass incarceration, and poverty with all of my work. Most of this can be traced to drug policies which came into play in the early 1970s and are still around today. I often feel like a field medic roaming the battlefield, dressing wounds, and occasionally saving lives. I have become an indispensable part of the machine—a cost.
Besides listening to Major Franklin, audience members' stories at the Circles Of Voices discussion underscored the war's effects. One man described how, growing up, both of his parents were addicted to drugs, and the stigma that attached to them. Another person had a close friend who was tragically killed by police while accepting a package of marijuana delivered by mail. A young woman spoke of a brother who is jailed for drug offenses leaving her a skeptic of the justice system. A former addict revealed how entrenched in the drug culture she was while using and how her life today was so removed from that experience. A former prosecutor in attendance once saw to it that my own client receive a lengthy mandatory sentence for a drug offense, but I didn't get to hear their thoughts. The numerous stories were powerful among the majority white audience.
Additionally, I hear of drug war collateral damages from my clients, who are mainly African-Americans. They fear for their lives. I also hear it from police officers, who feel unsafe. I see it in Baltimore. The war is dangerous, as its name suggests, especially in black neighborhoods. An insatiable desire to rid the streets of every last drug drives cops to stop and search too many people and places. Now I can witness the war firsthand on body camera footage from my cases. Despite calls for change in policing, black people are still being stopped and treated in ways that are simply foreign to me as a white person. Finding something illegal should never justify violating someone's rights. That line of thinking perpetuates the drug war. It has fostered brutality and death. A small percentage of guns and drugs comes off the street, while entire communities are left at odds with authorities.
Meanwhile, police officers put themselves in harm's way by disguising themselves as drug buyers and secretly videotaping deals to nab even the most small time of peddlers, many of whom I represent. Officers storm into residences to find stashes not knowing what might be on the other side of doors. And chases—are there no limits to following suspects? We have to declare an armistice.
Legalization, LEAP's endgame, is a noble concept, but there are quick fixes that we can implement now in the face of changes in Washington. First, prosecutors need to take their feet off the gas pedals while pursuing drug cases. District attorneys hold the keys to the kingdom for what specific offenses are charged against defendants. Prosecutors also determine which offenses (when several are charged in one case) a defendant can admit to in a plea. They alone have the ability to take a felony case and reduce it to a misdemeanor. Most drug cases work out for probation in Baltimore, yet prosecutors typically still insist on felony convictions as if they deter future crimes (which they don't). Even defendants screened and accepted by the State into drug treatment courts accept felony convictions. These guilty findings add up. They affect people's job prospects, housing, loans, and education opportunities. The ultimate irony is that these practices hamper defendants' abilities to get out of criminal activity.
Second, prosecutors should consider disbanding specific drug units and let "general" prosecutors handle the cases for a more realistic approach to drug crimes. This would give district attorneys a broader perspective on the gravity of victim-related cases and violent crimes versus drug offenses. In Baltimore, too many young prosecutors cut their teeth on meaningless drug cases, wasting valuable resources on fruitless efforts. Let them learn the value of drug cases relative to serious crimes.
Finally, we need to work backward to legalization and expand expungement rights. Expungement is a legal process to wipe clean one's criminal record or erase a conviction. With the exception of possession of marijuana under 10 grams, every single other Maryland drug conviction is permanent. We now know that defendants have been forced into pleas over the years because of unconstitutionally high bails that keep people awaiting trial in jail. We now know that the Baltimore police systematically violated people's rights during searches and seizures of citizens. We now know that the prosecution and sentencing for drug offenses differs among races. So, why do we let these marks of injustice stay on the books? The disparities can be healed by allowing people to, at least, go to court and argue for expungement rather than an outright ban. Think of expungement rights as war reparations.
True reform and change in drug policies might one day (way off) eliminate the need for so many public defenders on the battlefield, but I'd relish the day I am no longer needed. I've always wanted to do copyright law.
Todd Oppenheim has worked as an attorney in the Baltimore City Public Defender's Office for 12 years. Twitter: @Opp4Justice. Email: firstname.lastname@example.org