Update: Learn how to read: I did not say that only poor people plea bargain, or anything remotely like that. I said that only people who can afford good lawyers have a decent chance of getting their case dismissed. As I said correctly, the vast majority of cases are plea bargained. And as I also said, explicitly, clearly, and truthfully, it would be impossible for every case to go to trial because the courts can't handle the workload they have now.
I do not publish idiotic comments. Please stop wasting my time with stupid crap.
It is possible for a law to be explicitly racist, and of course throughout much of U.S. history a lot of it was. (Obviously, in the slave states, 100% of the law was explicitly racist but the 14th Amendment did not effectively eliminate explicitly racist laws.) Even without mentioning race, a law can have racist intent or effect by penalizing similar conduct differently, depending on irrelevant criteria that happen to be associated with race. The vastly disproportionate penalties for possession of crack as opposed to powder cocaine is one simple example.
What I want to talk about right now, however, is racially discriminatory enforcement of the law. Racial disparities exist at every point in juvenile justice. While black and white youth engage in behaviors that are potentially justiciable at similar rates, Black and Latino youth are more likely to be arrested; more likely to go to trial instead of being diverted to community service or counseling; more likely to be convicted at trial; and more likely to receive sentences of confinement if convicted.
The same goes for minor crimes by adults, be it shoplifting or selling loossies. (the penalty for which, if you happen to be Black, is summary execution.) That doesn't mean there shouldn't be laws against petty theft, or maybe even against selling loossies although that's more questionable. But it does mean the law should be enforced fairly, which it is not.
But what I really want to talk about right now is the war on [some people who use some] drugs. You may have noticed on your stroll around the neighborhood that there are establishments that sell alcohol, tobacco and nicotine delivery devices, openly and blatantly. They even have advertisements in the window. These are dangerous, addictive drugs. How do they get away with it? Well, it's perfectly legal.
Other drugs with potential for addiction however -- and by the way nicotine is the single drug which the greatest potential for addiction -- are illegal. These include opioids that have not been prescribed by a physician, amphetamines that have not been prescribed by a physician, benzodiazapines that not been prescribed by a physician . . . oh wait a minute, even when they have been prescribed by a physician these all have the potential to become addictive. Oh well, only illegal when not prescribed. Then there is cannabis, which until recently could never be prescribed, has very low potential for addiction, but was illegal everywhere.
As with juvenile delinquency and minor property crimes, enforcement of these laws has been highly racially disproportionate. White and Black people use illicit drugs at similar rates (some studies find that white people are actually more likely to use them) but Black people are far more likely to be arrested, charged, tried, convicted and incarcerated. That should not happen. But unlike laws against theft, there is a very compelling argument that these laws should not exist at all.
We are seeing a growing consensus about that with respect to cannabis, which is now legal in many states. It is obvious that the costs of prohibition far exceed the costs of actual use of cannabis. And in fact for some people there may be benefits, although I will say that because of prohibition, the studies to determine this are lagging. I think medical marijuana may be overhyped but that's really beside the point.
That said, many people still have the impression that the personal and social costs of opioid or amphetamine misuse are so horrific that criminal penalties for use, possession, or small scale sale are necessary. Experience shows otherwise. Portugal decriminalized all small scale drug possession in 2001 and the result was that HIV infection, drug related crime (i.e. theft to support drug habits) and other social consequences declined sharply. This happened because decriminalization was accompanied by increased resources for counseling and treatment, and a change in cultural attitudes about drug use, with reduced stigma and sympathetic understanding of drug misuse. By the way, the large majority of people who ever use these drugs do not go on to become addicted or develop a problematic pattern of use.
Since then, 25 other countries, and the state of Oregon, have moved toward decriminalization. You can read all about the movement here. Since the drug laws have a powerfully racist effect, decriminalization will also eliminate a major cause of racial disparities in life chances and social status. That's important. But it's the right thing to do regardless. And no, there's nothing the fuck wrong with me, I agree with the vast majority of people who study this issue from a public health point of view.
It seems I need to explain how the criminal justice system works. At the front end, the police have discretion about who they are going to arrest in the first place, and then they decide what to charge them with at booking. Who gets arrested in the first place depends in part on where the police concentrate their efforts -- what communities, what sorts of offenses -- as well as their personal discretion. As for charges, sometimes they are pretty unambiguous but the facts often offer options. Beyond that, what most people don't understand, is that the vast majority of cases do not go to trial. A person who can afford to pay a good lawyer may get a dismissal, because the police often don't have good enough evidence to get a conviction at trial and the judge may be convinced of that.
However, most defendants can't afford a lawyer or at least not a lot of a lawyer's time, so they get very cursory defense. What happens in those cases -- the vast majority -- is a plea bargain. It's up to the discretion of prosecutors what charges they'll actually stick the person with and what the sentence will be. Innocent people often plead guilty because of the threat of a stiffer sentence if they don't. But the sentence that guilty people get is up to the prosecutor. The justice system is seriously overloaded and they couldn't possibly take every case to trial even if they wanted to. At the same time, if everybody go the maximum possible charge and sentence, there wouldn't be a fraction of enough room in jail for them all. But putting people in jail, generally speaking, does not deter or reduce crime. Instead, it turns minor offenders into more serious criminals. Diversion programs -- sending minor offenders to counseling, substance abuse treatment, restitution -- is more effective at reducing crime. But all of these choices require judgment and discretion. There isn't any glib answer.