Um, how many ways does this essay fall into our bailiwick? So how come we missed it?
David Simon, Ed Burns, and George Pelecanos launched a salvo at America’s misbegotten drug policy, penning an essay in Time asking people serving on juries to vote to acquit any suspect charged with a nonviolent drug offense.
Wednesday, Mar. 05, 2008
The Wire’s War on the Drug War
By Ed Burns, Dennis Lehane, George Pelecanos, Richard Price, David SimonWe write a television show. Measured against more thoughtful and meaningful occupations, this is not the best seat from which to argue public policy or social justice. Still, those viewers who followed The Wire — our HBO drama that tried to portray all sides of inner-city collapse, including the drug war, with as much detail and as little judgment as we could muster — tell us they’ve invested in the fates of our characters. They worry or grieve for Bubbles, Bodie or Wallace, certain that these characters are fictional yet knowing they are rooted in the reality of the other America, the one rarely acknowledged by anything so overt as a TV drama.
These viewers, admittedly a small shard of the TV universe, deluge us with one question: What can we do? If there are two Americas — separate and unequal — and if the drug war has helped produce a psychic chasm between them, how can well-meaning, well-intentioned people begin to bridge those worlds?
And for five seasons, we answered lamely, offering arguments about economic priorities or drug policy, debating theoreticals within our tangled little drama. We were storytellers, not advocates; we ducked the question as best we could.
Yet this war grinds on, flooding our prisons, devouring resources, turning city neighborhoods into free-fire zones. To what end? State and federal prisons are packed with victims of the drug conflict. A new report by the Pew Center shows that 1 of every 100 adults in the U.S. — and 1 in 15 black men over 18 — is currently incarcerated. That’s the world’s highest rate of imprisonment.
The drug war has ravaged law enforcement too. In cities where police agencies commit the most resources to arresting their way out of their drug problems, the arrest rates for violent crime — murder, rape, aggravated assault — have declined. In Baltimore, where we set The Wire, drug arrests have skyrocketed over the past three decades, yet in that same span, arrest rates for murder have gone from 80% and 90% to half that. Lost in an unwinnable drug war, a new generation of law officers is no longer capable of investigating crime properly, having learned only to make court pay by grabbing cheap, meaningless drug arrests off the nearest corner.
What the drugs themselves have not destroyed, the warfare against them has. And what once began, perhaps, as a battle against dangerous substances long ago transformed itself into a venal war on our underclass. Since declaring war on drugs nearly 40 years ago, we’ve been demonizing our most desperate citizens, isolating and incarcerating them and otherwise denying them a role in the American collective. All to no purpose. The prison population doubles and doubles again; the drugs remain.
Our leaders? There aren’t any politicians — Democrat or Republican — willing to speak truth on this. Instead, politicians compete to prove themselves more draconian than thou, to embrace America’s most profound and enduring policy failure.
“A long habit of not thinking a thing wrong, gives it a superficial appearance of being right,” wrote Thomas Paine when he called for civil disobedience against monarchy — the flawed national policy of his day. In a similar spirit, we offer a small idea that is, perhaps, no small idea. It will not solve the drug problem, nor will it heal all civic wounds. It does not yet address questions of how the resources spent warring with our poor over drug use might be better spent on treatment or education or job training, or anything else that might begin to restore those places in America where the only economic engine remaining is the illegal drug economy. It doesn’t resolve the myriad complexities that a retreat from war to sanity will require. All it does is open a range of intricate, paradoxical issues. But this is what we can do — and what we will do.
If asked to serve on a jury deliberating a violation of state or federal drug laws, we will vote to acquit, regardless of the evidence presented. Save for a prosecution in which acts of violence or intended violence are alleged, we will — to borrow Justice Harry Blackmun’s manifesto against the death penalty — no longer tinker with the machinery of the drug war. No longer can we collaborate with a government that uses nonviolent drug offenses to fill prisons with its poorest, most damaged and most desperate citizens.
Jury nullification is American dissent, as old and as heralded as the 1735 trial of John Peter Zenger, who was acquitted of seditious libel against the royal governor of New York, and absent a government capable of repairing injustices, it is legitimate protest. If some few episodes of a television entertainment have caused others to reflect on the war zones we have created in our cities and the human beings stranded there, we ask that those people might also consider their conscience. And when the lawyers or the judge or your fellow jurors seek explanation, think for a moment on Bubbles or Bodie or Wallace. And remember that the lives being held in the balance aren’t fictional.
Say word.
Can anyone out there vouch for the legality of this kind of civil disobedience? Could you serve on a jury knowing full well that you’d made up your mind on the possibility of voting for or against a conviction in advance? And how many drug cases go to trial, anyway (since most defendants will plead out)?
UPDATE: Slate‘s David Feige weighs in.
The unfortunate truth is that jury selection in drug cases around the country increasingly resembles the kind of “death qualification” that capital juries go through. So common is the revulsion to our misguided drug war that judges and prosecutors routinely ask jurors if they have a principled objection to it, following up with questions specifically designed to expose anyone who would have a moral or political objection to the theory or practice of our war on drugs. Avoiding disclosure often takes more than just failing to raise one’s hand in response to a general question. More and more, specific jurors who prosecutors suspect for one reason or another may harbor anti-drug way sympathies are directly queried about their views making withholding look very much like outright deception.
The problem with all of this, of course, is that in the end, more and more juries are comprised not of a fair cross-section of the population, but rather by conservative folks who have no compunction about convicting someone of a drug crime regardless of the eventual sentence. And generally speaking those same jurors are more likely to view the evidence in ways that are favorable to the government in a drug prosecution, increasing the likelihood of conviction.
In the end, taking the pledge that Mr. Simon proposes may be a wonderful thing if your goal is merely to raise awareness of the terrible injustices perpetuated everyday in drug cases around the country. But if you really want to set some people free, if called down to the courthouse, a more moderate position (or at least a bit of existential trickery) will be a more effective approach.
