"Only 20% Of The Incarcerated Are Confined For Drug Offenses"

a closer look at the problem

I’ve been hearing that statement for years- actually, more like decades. Most often, it’s been used as a rejoinder to the claim that the source of most of the crime problem in the US is the current regime of the War On Drugs, which is the position that I hold. That statistical claim—which is true, strictly speaking—is often used for the purpose of obviating any need for further discussion.

Not this time.

The Drug War is in a funny place right now; in the 1980s, only pariahs said that it was doomed to fail. By the 1990s, bemoaning the failure of the Drug War became an more widely held sentiment; as of today, 2024, it’s the prevailing attitude. So much so that many journalists and politicians are referring to the “War on Drugs” in the past tense, as if the campaign of militarized enforcement and incarceration to Stop Drugs had ended. That is not the reality of the situation.

There have undeniably been some important moves made, particularly in the direction of liberalizing the marijuana laws. Some states have gone so far as to make legal provision for a regulated and age-restricted market in cannabis. But the local-regional regimes of legalization have also enabled the rise of a multibillion-dollar market in cannabis cultivated in commercial quantities for the purpose of diversion to the states where cannabis remains illegal. And the bottom line is that the Federal criminal laws have remained unchanged. Largely unenforced, except on Federal land, but still on the books.

Uneven enforcement of criminal statutes forbidding drugs has been as much rule as exception for nearly a half-century, in varying degrees. For the first 30 or so years after Federal marijuana prohibition was enacted in 1937, “crime was crime”; anyone arrested with a few marijuana cigarettes was looking at jail time, and anyone who sold or even gave a couple of joints to someone else faced a felony rap with prison time. Probably the most notorious case—although not an isolated one—was Beat culture hero Neal Cassady, who served two years in San Quentin in 1958 for obtaining a few joints of pot for an acquaintance who turned out to be a narcotics officer. Then the 1960s youth culture emerged—first in California and the Northeast, and then, first gradually and then suddenly, Everywhere: by the early 1970s, marijuana use had become common even among social classes and subcultures formerly dead-set against it. This could play out in very capricious ways; by the end of the 1960s, nearly all college campuses in the Northeast were informally treated as safe zones for drug use, possession, and retail dealing- but in less favored social environments and in other parts of the country, possession of only a few grams could still land the hapless arrestee in jail. As late as the 1980s, I recall reading a newspaper column written by a judge about an Arkansas case where a young kid in his early 20s was arrested and summarily jailed for a small amount of pot, and then gang-raped behind bars. I doubt that was the only time that happened, in the early years of the Drug War. It isn’t a history that scholarly researchers have pursued as a research topic, but I’d venture that a sufficiently thorough search of the relevant records would yield a partial accounting of such atrocities, along with other details of the impacts of draconian criminalization regimes on people whose only criminal transgression was violating the drug possession laws. That historical accounting isn’t a research project that anyone is really ready to undertake, at present. But the reality of the phenomenon undoubtedly accounts for most of the increased court leniency toward marijuana possession offenses that began in the late 1960s in some locales, extending over time until it became routine practice for first offense marijuana possession across most of the country by the 1990s. In fact, beginning in the 1980s, similar leniency began to be routinely extended toward first offense personal possession of other substances; in many jurisdictions, the main motivation was an effort to clear overloaded court dockets. The dockets often remained overloaded, but not hopelessly so. At least, not as hopelessly so as formerly.

This leniency toward first offenders in drug possession cases is often used by defenders of the Drug War status quo as proof that the worst injustices of Drug Prohibition have been ameliorated on a wide scale, and that the biggest obstacle to success at cracking the Drug Problem is the currently inadequate government funding of “education and treatment” to help the offending user population, of “addicts.”

Not hardly.

I agree that publicly funded addict rehabilitation is underfunded overall, and even practically unavailable in a lot of jurisdictions, compared to the number of people who are seeking it. The problem is that a focus on “stopping addiction”—on users alone—will never solve the core problem, which is the existence of the burgeoning illicit market. Consider that during Prohibition War I- the one against alcohol, 1920-1933- personal possession of alcohol was not Federally criminalized, and only rarely enforced in the few jurisdictions where personal possession was deemed a criminal offense. Prohibition War I targeted the Illicit Trade, nrade, not the users. It failed because it became widely recognized that the efforts to stop the Illicit Trade were not only ineffective, but terribly counterproductive as far as deterring the violent crime and epidemic corruption connected with the Illicit Market. The Underground Empire, then and now. Organized Crime syndicates. The people often referred to nowadays as the Drug Dealers. The Drug Gangs. The Cartels. The 1920s were the first era of the Drive-By Shooting.

Fourteen years was sufficient for the logic of Prohibition Repeal to be widely accepted by Americans in 1933. In 2024, we’re still fighting a War on (some other) Drugs that has been going in for 100 years, in some of its most crucial aspects. Although the real escalation of the Drug War began in the mid-1960s, officially certified with an emphasis on globalizing the War during the Nixon administration. And the real big-budget crackdown didn’t begin until the era of the Reagan administration, which was still under the mistaken impression that the American market in prohibited drugs could be eradicated by a sustained law enforcement push. That is not what happened.

Instead, what began happening is that so many people got busted that eventually the courts had to set up quasi-official leniency regimes to deal with the overload of drug offenders. One interesting aspect being that the same leniency was even sometimes extended to small-time retail dealers- and in some jurisdictions, to dealers caught with quantities of powder drugs, like cocaine, that were more like wholesale quantities. There’s been a lot of talk and ink spilled over the draconian Federal mandatory minimum penalties for “crack” vs. powder cocaine that were a provision in the antidrug gavel-pounding passed by Congress in 1986. Federal mandatory minimums mean that no judge can modify the sentence, and also that the convict has to do 80% of the time (for non-mandatory felonies, including crimes like rape and manslaughter, most convicts are eligible for parole once 50% of their time is served, or even less.) The old Federal drug mandatories decreed a minimum 5 year sentence for possession of 5 grams of freebase cocaine, “crack”; the same Federal 5-year sentence for cocaine hydrochloride, “powder”, required 500 grams in order to be applied. Those provisions were grotesquely irrational and unjust, and I applaud their repeal. But it’s a little-known fact that most crack and cocaine possession cases are not prosecuted as Federal offenses. They’re prosecuted in State courts, and most states have more lenient provisions than a bottom line of 5 year mandatory imprisonment. And—depending on the jurisdiction, and the decision of the individual prosecutor assigned to the case- it’s entirely possible to bargain down a quantity of drugs that both the statutes and ordinary good sense says is a saleable quantity, a felony, down to a personal possession charge- and, sometimes, from there to a drug court diversion. This prosecutorial discretion is mostly an admission that the illicit drug economy has overwhelmed the local courts. It’s also an attractive opening for corrupting DAs and judges, but in my observation that motive doesn’t account for most of the leniency in plea bargaining possession of large quantities down to the level of personal possession misdemeanors. It’s mostly about clearing the dockets. The thing is, few of the dealers who get those bargains—typically for their first arrest—take that leniency as a signal to immediately quit the game. People arrested for multi-ounce quantities of cocaine are almost always in too deep to want to quit- not quit using; quit dealing. To quit depending on cocaine for their income. They may not be able to quit—they might face the prospect of foregoing an illegal business and immediately having a formerly lucrative income dropping to zero. Hunting for a legitimate job with little or no experience or resume to show anyone who does the hiring.

That’s the Business of Illegal Drug Dealing for you: it’s an Attractive Nuisance. A job making good money, cash on the barrelhead, calling your own hours, that’s also a crime. Typically as participation in a continuing criminal enterprise. A multilevel marketing scheme, only with a product so in demand that it practically sells itself. A be-your-own-boss marketing opportunity, sometimes beginning at age 12. Although most of the entry-level retail marketers run a bit older than that, almost all of them start by age 17; hardly anyone goes into the street drug game for the first time in their 20s. The weirdly capricious System that makes and enforces the ground rules of the Game has included a loophole that confers a unique advantage to teenage participation in the illicit drug economy: the legal status of Juvenile. It’s as if the law clears the books and resets the counter, and nothing that happens before age 18 counts. Teenagers are still liable to get busted and convicted—including for serious violent offenses—and the legal consequences don’t follow them into adulthood. But other consequences often do, for the Minors who don’t merely dabble in dealing drugs but find the Game sufficiently rewarding that it seems like it would make a Career. Typically at the expense of the legitimate, law-abiding paths available. However, this isn’t widely recognized by 16-year old teenage boys. Especially those growing up in “low-income households”- which could mean any circumstance from a hardworking, law-abiding Christian mother working two jobs and leaving her son as a latchkey kid, to a teenager coping with dire poverty in a household so dysfunctional and insecure that they abandon it to shift for themselves on the streets.

So, yeah, nowadays the Drug War is real lenient on Drugs- at first. From minor status and juvenile conviction records sealed at age 18, to Drug Courts, to prosecutors bargaining down hard-drugs possession cases to misdemeanor offenses that are even sometimes eligible for “diversion” and having the record wiped are a few years, if its a first offense. A way out for the users, perhaps. But for dealers, the early leniency of the courts is just a setup for an eventual fall. Makes for more extended vacancies in the resume.

But there’s more to the story than that. The real hardcore criminality of the Drug Dealing industry is more than simply a matter of trafficking in forbidden substances. The Drug Industry is like the pawn shop business- except that the pawn shop business is legal. It’s routine for pawnbrokers to carry a firearm when they close up for the night and take the bundle they’ve made from their all-cash business with them. If someone tries to rob them and they have to pull the trigger, they get to do that—legally; they’re in fear of life and limb, from someone trying to deprive them of their livelihood. They’re able to protect themselves against the burglary of the inventory of their legally chartered, sign-advertised business establishment with shutters and locks, and they’ve made arrangements with insurance companies to recover losses and damages in the event of theft.

The business of dealing illicit drugs has none of that. Their weapons possession is a felony (illegal gun possession is most often listed in crime statistics as a “violent” felony); they aren’t able to open a brick and mortar storefront (at least not without risking a police raid); their business assets are not eligible for insurance protection. As if that wasn’t vulnerability enough, the goods that they deal in are practically as compact and fungible as cash. Thousands of dollars worth of powder drugs can be carried in ones pants pockets. Tens of thousands of dollars worth of that inventory can be carried in a backpack. And while these goods aren’t as fungible as currency-- legal tender—they’re easier to sell than, say, a stolen guitar or computer.

Maybe some readers can see where I’m heading with this.

The business of dealing drugs on the street seems so easy at first that it’s like instant money. The easiest entry-level job someone could have. Until someone robs you, and it’s understood that the police are no help at all. Your bottom line of protection is you alone- your physical courage, your ability to engage in physical violence- including carrying a pistol and willing to pull the trigger, if need be. But as a rule, that isn’t enough. You need friends in the same position as yourself, for mutual assistance and protection. A crew, a posse. A Gang. Organized crime. Then personal security gets much easier, in some ways. Although not in others. As the saying goes, when It’s On. Crew vs. crew. And all of it a Criminal Conspiracy. Arrest, conviction, and time behind bars the price of doing business, fully understood. At least by adults, after that first bust. Especially by the adults who realize that they’re in too deep to just walk away from the business just like that. So most of the people who stay in the illegal business of forbidden drugs for any length of time eventually find the need to protect their business with violence.

How many of the “nondrug” felonies that have landed people in prison can be traced back to their involvement with dealing drugs from an early age? Those statistics are not publicly available—and may not be available at all, not even as an estimate. I doubt that they’ve even been compiled, at least not in a comprehensive, authoritative way, on a large scale basis. How many murders are due to gang involvement- especially in the cities with the highest murder rates and the lowest case clearances? Those details are often only found in police reports that note details like gang tattoos, clothing signifiers, other physical evidence traces. Or details found in the decedents police record.

Those details have seldom been included in crime statistics; when they have been noted, it’s only done as a project within local police jurisdictions, and not tracked comprehensively and annually, the way more general indicators are compiled by agencies like the FBI. Bearing in mind that not all victims of gang-related homicides are gang members, or even intended targets.

According to this 2022 Atlantic magazine article,

In the 1960s, more than 90 percent of all homicides were “cleared” by police, with an arrest or the identification of a dead suspect. But the clearance rate has declined in each of the past six decades. In the most recent data available from the FBI, the clearance rate hit an all-time low of just over 50 percent. That means that about half of all murders in the United States today go unsolved.

In the conversation between Derek Thompson and Jeff Asher, there are six factors affecting this situation: 1) some of the decline is said to be due to paper inflation of the clearance rate in the 1960s and 1970s by police. 2) The decline in the of the use of unethical “3rd degree” interrogation tactics in the aftermath of the Miranda decision was also said to be a factor in the lower closing rate, down to about 70%.

Then something changes that accelerates this gradual decline, beginning in the 1980s. Among other clues, 3) many more murders are committed with firearms.

Asher: In the 1960s, about 50 percent of murders were committed with guns. Today, almost 80 percent of murders are committed with guns. And the share of murders committed by firearms has crept up at a nearly identical rate to the steady decline of murder clearances. Correlation does not equal causation, but if you plot the two together, you see a very strong correlation in the last 40 years.

I think this point is important, because Asher goes on to point out that firearms murders are more likely to involve killing from a distance, and they’re therefore inherently more difficult to investigate. Which is true, as far as it goes.

But there’s an alternate narrative here. And it accounts for an angle that Asher and Thompson never mention: the rise of the economic power of the gangs, which among other things made them a key consumer market for expensive pistols and automatic weapons. There had been gangs in the big cities for years- some of them quite large, notably the gangs of Chicago. But only the gangs turned into street retail drug syndicates really made crime pay, in the 1980s. In the last 40 years.

Organized gangs involved in continuing criminal enterprises enforce a No Snitching rule.

The no snitching rule is already everyone’s teenage code, at least in the US. Most everyone knows to keep their mouth shut about some things they’ve learned. Some even understand the resilient imperative of the rule as adults, depending on the circumstances. Including law-abiding citizens of a neighborhood where the illicit trade is powerful and wealthy. The gangs enforce that rule with the death penalty. That’s probably the single most important reason for low murder clearance rates in some neighborhoods: everyone who knows incriminating details scared into silence. It gets to be taken for granted that talking to the police leads to trouble.

Thompson and Asher never mention this reality, just like they never mention the connection between the gangs and the increase in sales of high-powered assault weapons and pistols that began in the 1980s.

The 4th explanation presented is “higher standards from district attorneys and juries.” The hypothesis that the threshold of evidence required for a jury conviction has been raised so high in the public mind that DAs find it tougher to make the decision to bring a murder case to trial. Asher demurs that “we don’t have great data to know for sure if this is a big deal.”

The 5th explanation:

Thompson: Explanation No. 5 is racism. I’ve seen evidence that the clearance rate for Black victims in the last few decades has gone down while the clearance rate for white victims has gone up. That is, the cops are better at solving crimes when the victim is white, and as Black Americans make up a larger share of murder victims, the police solve fewer crimes.

Asher: There is obviously racism in the criminal-justice system and in policing. But are police getting more racist every decade, for 60 years? I don’t know. We don’t have clearance rates broken down by race as clearly as you suggest…

Thompson: How do you feel about this explanation: As Black victims of gun murders have increased as a share of all gun-murder victims, the poor relations between Black Americans and police officers have made it harder for the police to get evidence about who might have committed these murders. And therefore, the impression, often accurate, of police being racist feeds into Black Americans being less responsive to and less cooperative with police, which then feeds into a lower clearance rate for Black victims of gun homicides.

Asher: That’s the entire thesis of Jill Leovy’s Ghettoside. I think that it’s certainly plausible. There are certain neighborhoods where the police just don’t solve murders. In New Orleans, 90 percent of murders in the French Quarter are going to be solved. A mile away in the Seventh Ward, maybe 15 percent of those cases are being solved. The geography of murder is very important. Certain communities don’t trust the police. They don’t trust the state. They take things into their own hands. And it sort of creates a cycle of violence that’s very difficult to interrupt, because you don’t have that initial layer of trust in the police to have a monopoly on violence.

That’s obfuscation. We’re talking about Murders here, not merely the myriad other sorts of conduct that people keep their mouths shut about when it comes to police. People who witness murders and then don’t talk don’t do it out of fear of the police. They do it out of fear of getting murdered themselves. It is calumny, to blame the police for the people intimidated by the criminals in their own neighborhoods.Those folks have an all-too-valid excuse for their silence—one related to a threat that’s a lot more immediate than Police Racism. There are people in their own neighborhood who might kill them if they disclose what they know. In some cases, they might not be able to move away far enough as a protected witness to escape retaliation. How is this not even brought up, as a real-world dilemma for the witnesses?

Thompson: I wonder if some police are just not doing their jobs. Is it possible the quality of detective work is just much worse than it used to be? Police today spend much of their time clearing homelessness or responding to mental-health crises in downtown areas. That’s not being a detective. That’s being a social worker with a gun in your pocket.

That…I mean…I’ve never been a cop. But I know the meaning of the words “don’t tell me how to do my job.” You never did that job. You don’t know what it is. That’s some flimsy speculation, and flimsy speculation doesn’t make the person saying it sound very wise. So maybe that should be rephrased. The way I’d put it is that you can’t fight a War On Drugs- including dealing with the late-stage collateral damage that has piled up after decades of expensive failure- and support a priority of fighting crime at the same time.

Asher: This isn’t something we can measure in a satisfying way. But something we’ve seen is police numbers dwindling or flatlining while violence has increased. Let’s say you have 30 detectives who are investigating 150 murders. That’s five murders per detective, which is the standard. But if violence doubles and some officers leave to retire or go work in the suburbs, 250 murders among 25 officers is 10 cases per person. Now you’re going to have a harder time solving murders. And I think that you’re probably seeing some of that, especially since 2020.

Good point. Fewer police can lead to more problems. Fewer seasoned professionals can lead to less productive investigations. Fewer people want to be cops any more, especially in most of the big cities, especially in neighborhoods gone gangster. 40 years after the rise of the streetcorner retail trade in high-dollar, high-demand cocaine, there are still plenty of pistols around. Street retail isn’t the glamor job it used to be, now that the clientele has shifted to opioid users. But the money still rolls around. The demimonde ebbs and flows. The antisocial values of criminality become endemic.

Some people find a way out.

5 things I learned living in the projects--Latimore

As long as the crews and the gangs and the castaways of Pinocchio’s Pleasure Island are a neighborhood institution as role models of upward mobility, or anyway ‘doing-what-I-gotta-do’ “survival”, the neighborhoods will not cure themselves. The simple addition of more police to the force will not cure them, either.

Thompson: I count six possible explanations for the decline in the clearance rate. One: The 1960s numbers were bunk. Two: The effects of Miranda. Three: Guns. Four: Higher standards from juries and DAs. Five: Racism and distrust between police and Black communities. Six: Fewer and overextended police officers. With the understanding that crime data is imperfect and that these are all hypotheses, which one explains most of the decline in clearance over the last 30 years.

Asher: It’s the guns. The nature of murder in America is changing in ways that we don’t really talk about enough. You’ve got a bunch of cities where firearms make up 80 to 90 percent of murders today. That is the main driver. Guns make murders much harder to solve, and it leads to lower clearance rates everywhere.

At the risk of sounding cliche: guns don’t kill people, any more than lawnmowers decide all by themselves to take advantage of a cool spell and a clear afternoon to cut the grass. I think we have entirely too many guns in this country, and the swerve in the retail gun trade from bolt-action hunting rifles to paramilitary gear was not something I would have anticipated in the 1960s and 1970s. Few Americans back then would have approved of it. It began with the arms race of the 1980s, between the crack gangs and the police TAC squads. And then all of those gang-related rifles somehow caught on as a Consumer Item, just like TV shows about drug dealing, police, and prisons have caught on. Meanwhile, the possibility of being victimized by violent street criminals has gotten to feel like more of a threat to a lot of us, particularly those Americans in the less favored neighborhoods. Much of the problem is overblown, but the part that isn’t is no joke. People want to be prepared to handle things in the moment, when it counts.

That’s how it is. And it’s probably the case that somewhere in the State-generated condition of bureaucratic Iatrogenesis that built all of those extra prisons in the 1980s and 1990s there’s at least one kid who got in over his head in the wrong retail trade and pulled the trigger in a case of him-or-me self-defense that couldn’t be sold to a jury because Drugs, now doing life in prison. That is not justice, it is not Stopping Drugs, it is not stopping the demand for firearms, legal or otherwise. Think about what leads to some of these murders. Big business, and its discontents. Look at how slipshod the statistics data is. How many uncleared cases involve automatic weapons fire, certain types of ammunition, extended gun battles, execution-style modus operandi? No one is tabulating that as a subcategory, paying attention to the running total? No one paying attention there? I can find more details in relation to traffic fatalities, at least in terms of easily reviewable publicly accessible data.

And yes, to the dismay of you Second Amendment Absolutist Fanatics in the audience, I do support a national regime of accountability for firearms owners. Including a ban on some of the Force Multiplier weaponry out there. Even though I realize that the ship has sailed, we don’t need any more new additions to the voluminous inventory of paramilitary firearms out there already. But I’m not under any illusion that more firearms regulation is the key to restoring civic order in crime-beleaguered neighborhoods, or public confidence in the police.

The factor leading to most of the increase in uncleared cases is the organized crime monopoly over the trade in prohibited drugs. Directly or indirectly. A comprehensive overhaul of the drugs laws is overdue. As of now, the still-continuing War On Drugs is the dry rot of public policy.

Neither Derek Thompson or Jeff Asher uttered the words "drugs" or "gangs" anywhere in the excerpted podcast interview, much less devoting any attention to how those factors might have influenced the decades-long decline in the homicide clearance rate.