Aggressively Defending My Clients Since 1990


On Behalf of | Oct 1, 2017 | Firm News

Every day I sit in drug courts in Milwaukee County and hear prosecutors tell courts that some particular drug case is serious is because “it is well established that drugs and violence go together.” By drug crime, let me also be clear I am talking about illegal drugs, not the more common legal drug, alcohol (which I guess does not cause violence?). I always wonder about the implication of that statement. Is the prosecutor saying alcohol does not cause violence or that only illegal drugs cause violence?

Like the need to revoke a new felon’s right to participate in democracy by voting (this is the sentencing practice known as disenfranchisement which has its origins in America’s slave codes; meaning, every time a judge disenfranchises a newly convicted felon they are implicitly accepting a practice from America’s slave codes), I have also wondered if there was evidence that drugs and violence go together. This is an important question since in fiscal 2016, in the Eastern District of Wisconsin (the federal district which includes Milwaukee, Waukesha, Ozaukee, Racine, Kenosha Counties), drug cases (33.2%) were the largest number of cases being dealt with in the criminal system. Incidentally, the second largest number of cases dealt with were firearm cases (27.9%). By the way, nationally those numbers are different: drug cases make up 31.6% of the cases while firearm cases make up only 10.8% of the cases.

The Drug Enforcement Administration (DEA) asserts that drug trafficking poses serious threats due to the violence that accompanies it, and the DEA therefore opposed releasing nonviolent drug offenders under the Smarter Sentencing Act since releasing 1 percent of federal prisoners would lead to over 32,000 more murders, rapes and other violent crimes.

Despite this position by the DEA, 6,000 federal inmates have been released early from prison — the largest one-time release of federal prisoners — in an effort to reduce overcrowding and provide relief to drug offenders who received harsh sentences over the past three decades, according to U.S. officials. The early releases follow action by the U.S. Sentencing Commission — an independent agency that sets sentencing policies for federal crimes — that reduced the potential punishment for future drug offenders last year and then made that change retroactive. Importantly, being released from prison does not usually mean getting out of the prison system. About two thirds of the inmates are first moved to lower-security prisons, then to halfway houses before home-confinement and, finally, probation. This action by the U.S. Sentencing Commission is separate from an effort by President Obama to grant clemency to certain nonviolent drug offenders, an initiative that has resulted in the early release of 89 inmates.

So with all these prisoners being released, there should be an up-swing in violence since drugs and crime are linked, right? In trying to answer that question I read an interesting paper by Professor Shima Baradaran Baughman entitled Drugs and Violence 88 USC Law Review 227 (2015).

Professor Baughman identifies the pervasiveness of the premise of drugs and violence and debunks it: “Most drug offenders commit nonviolent offenses and at low rates. Though certainly drug addicts commit more crimes, they commit them at low rates, and the connection between drugs and violent crimes is complex and not conclusive…. At best, the connection between drugs and violence is uncertain. Indeed, studies have pointed out that forces of violence are not caused by drugs but may come from economic hardship, poor intellectual capacity, an aggressive temperament, or other personality disorders. …This unsupported connection leads to a loss of important constitutional rights, trumped up mandatory sentences, and disproportionate increases in incarceration for non-violent defendants who pose little threat to public safety. The entire framework of federal and state drug statutes must be reworked to remove the many presumptions that drugs cause violence.” Professor Baughman has said.

Professor Baughman demonstrates that a connection between drugs and violence is not supported by historical arrest data, current research, or independent empirical evidence. That there is little evidence to support the assumption that drugs cause violence is an important insight, because the assumed causal link between drugs and violence forms the foundation of a significant amount of case law, statutes, and commentary. In particular, the presumed connection between drugs and violence has reduced constitutional protections, misled government resources, and resulted in the unnecessary incarceration of a large proportion of non-violent Americans.

In short, if drugs do not cause violence then America needs to rethink its entire approach to drug policy.