Take a close look at the infographic below, one I created for this article. Stew on the statistics a while, then read on.
(See end notes for sources).
Now let’s consider the unknown implications of these facts. Many of these people are and always will be labeled as criminals, carrying with it not only the stigma, but the likelihood of diminishing their opportunities for employment. Some have their family lives destroyed and some must struggle unnecessarily to overcome the barriers our society has placed upon them for their infractions. Children are without their parents and often put into foster care because of imprisoned parents. Finally, realize that because it’s often only a misdemeanor offense, it doesn’t mean it’s inconsequential. Allow me to illustrate with a couple of anecdotes.
When I was in my youth, I experimented with drugs. I was not a casual pothead. I used it frequently and excessively. At age nineteen, I made a decision to join the military. Had the military discovered my previous drug abuse, I would have been denied that opportunity to serve. I stopped using drugs and twenty years later, I retired from the Air Force with both a bachelor’s and master’s degree, both earned while on active duty. I had transitioned from an enlisted man to an officer. I became a software engineer, and subsequent to my military life, a successful entrepreneur and businessman. Those professional and educational opportunities came as a benefit of my service. How was this possible? Because I was lucky and didn’t get caught. I shudder to think how my life would have turned out had I been arrested and convicted of indiscretions done while my frontal lobes weren’t even fully developed.
Contrast that with this story. In the last fifteen years, I spent a great deal of time mentoring youth. In one case, one of them was given a 90 day jail sentence, deferred to probation for two years with mandatory random drug testing for possession of a small amount of marijuana. In my view, it was a ridiculous penalty. The absurdity didn’t end there. The penalty was 45 days for possession of marijuana and 45 days for the pipe he used to smoke it. This was clearly a punitive and unnecessary amplification of an already stupid sentence. He was simply unlucky enough to get caught from that vast pool of half the population that did the same thing. During his probation, he made an effort to improve himself and became a fitness enthusiast, spending hours each day at the gym. This activity sometimes requires hydration at levels most of us don’t require. When called for a random drug test, his urine was diluted due to his recent excessive hydration and the test was ruled inconclusive.
Guess what happened. Inconclusive drug tests are considered automatic failure and a violation of his probation. Back to court he went, where he pled his case and was forced to serve ten days in the county jail. Prior to the hearing, his lawyer actually recommended he lie to the judge and claim that he had a drug addiction so he could be diverted to drug court and another year or two on probation, just to avoid actually serving time in jail. I advised him to ignore his lawyer’s advice and serve the ten days just to get it over with. Thankfully, he took my advice.
Growing up, he dreamed of joining the military after graduating from high school. The military would not consider him for enlistment due to his conviction and probation. Only after 90 days following completion of his probation would they consider him, and then only if a waiver was approved. I wonder how this young man’s life would have changed had he not been caught. By the way, if you believe that the military is composed only from the 51% of people who never tried marijuana, you’ve probably been smoking some yourself. He is now twenty one years old, is entirely self supporting, and works full time at a fast food restaurant, walking more than a mile to work each day regardless of weather (he can’t afford a car). I know him to be of outstanding character and he has defied all odds coming from a life with a dysfunctional family. Did society do him or anyone else a favor by subjecting him to this life changing experience – an experience that half the population avoids by being lucky by and not getting caught? Had he been allowed to join the military three years earlier, he would have been promoted several times and earning enough to own his own car and he would have had a marketable skill. Are we really okay with that?
Ask yourself this question: Should 49% of our population be subjected to this punishment? After all, they broke the law and should pay the consequences. If you support convicting people of these charges, then logic clearly dictates everyone who has ever tried marijuana should too, right? Would your answer be different if somehow they all were subjected to these penalties? Is it not hypocritical to suggest this young man got what he deserved, but your kids justifiably get a pass because they didn’t get caught?
Many have been trying to reform sentencing laws and even decriminalizing misdemeanor drug offenses. Those efforts have been slow and largely unsuccessful. What can we do about it? I suggest two things:
- Support jury nullification and pass state laws that require judges to inform juries that nullification is constitutionally permitted. Currently, many judges actually instruct their juries they must not do so. Constitutionally, the judges are wrong. Part of this would be to educate the public and encourage lawyers and defendants to demand jury trials for these minor offenses. Let the public decide if these ridiculous charges are worthy of the heavy handed punishments that are merely designed to extract fees from people who can’t afford them. And consider how the justice system might react if each of these assembly line conviction courts were forced to refer most of them to trial.
- Educate and encourage law enforcement agencies to stop pursuing minor drug offenses and other misdemeanors. I refer to this as nullification by law enforcement. Police do this routinely already for minor traffic violations. You do hope you get a warning the next time you get pulled over for speeding don’t you? That’s right, allow and encourage law enforcement to use their discretion just as we do for prosecutors. No longer citing people for possession of marijuana would be a good start.
The result can be dramatic. Our courts will no longer be flooded, our law enforcement budgets can be drastically reduced, and our prison population and the costs thereof will be cut in half. Best of all, we’ll stop making criminals out of our youth for their minor indiscretions. Finally, let’s use some of that money saved from prison and jail budgets and direct it toward serious rehabilitation efforts for those with serious drug addictions.
- Over half of the expenditures on imprisonment is for non-violent drug offenders which were simple possession charges (source1, source2).
- On average, there are over 100 SWAT raids per day in the United States. The majority of those are to serve low-level drug warrants (source).
- Tens of thousands or innocent people are wrongly convicted based on unreliable drug tests (source).114
- Over the last 30 years, local and state governments increased how much they spend on putting people in jail three times more than how much they spend on educating students, according to a new analysis by the Department of Education (source).NN
- Blacks are incarcerated for a drug offense at a rate 14 times that of whites, yet five times as many whites use drugs as blacks (source).
- There has been a nearly 300 percent increase in incarceration of youth for drug involvement at a time when drug usage among youth has decreased (source).
- Rehabilitation is less costly than imprisonment (source).
- Nearly half of our population (49%) admits to having tried marijuana (source).