In preparing this text, my colleague and I were concerned that we properly express not only our particular viewpoint, but also, perhaps, speak for rank-and-file law enforcement personnel. Law enforcement personnel at a policy-making level are well-represented in centers of power, and are frequently called upon by the news media to express their opinions and ideas. But rank-and-file law enforcers, the ones responsible for actually executing the policies formulated by their bosses, are rarely if ever seen outside their role as the tools of our government policies. They are rarely asked their opinions and even more rarely give them. They are like walk-ons and extras in a drama written and staged by politicians. In virtually every law enforcement agency — police and investigative agencies, prosecuting agencies, correctional agencies — unsanctioned expressions of opinion are tantamount to treason. We make no claim to speak for all rank-and-file law enforcement personnel, merely that we are attempting to give voice to a view which is shared by others within law enforcement, a view which dare not be voiced aloud.
Indeed, one of the two bylines on this paper is a pseudonym. "Mr. McBride," because of his government employment, uses this pseudonym, out of concern that publishing or speaking out using his true name would subject him to retaliation, via transfer, demotion, or perhaps firing.
We have nothing but admiration and respect for the thousands of honest and hard-working law enforcement personnel, although we know that many disagree with some or all of our premises and conclusions.
For the politicians who have created the drug war, we have little but contempt. Those people, by exploiting the drug issue for their own ends, are displaying contempt for the dedication and courage of those who carry out their unworkable poli-, cies and reckless edicts at great personal cost. They also display a contempt for American citizens by carrying on the public debate about drugs in a hysterical and misleading manner.
Most law enforcement agency chiefs deserve little better. As the creatures of politicians, they often sacrifice the well-being of their subordinates and the communities they serve with shortsighted decisions. Both the hysterical anti-drug politicians and the law enforcement officials who trucide them have climbed to power over the bodies of dad police officers and citizens.
Similarly, we have little, if any, sympathy for narcotics traffickers, especially at the higher levels. Putting these people out of business is not the least attractive feature of decriminalization.
Decision-Making in Law Enforcement
A facet of prohibition which is rarely, if ever, publicly discussed is the day-to-day decision-making of law enforcement agencies.
The reality of law enforcement in the "war on drugs" is that policies and decision-making are tailored to political needs. These political requirements, in turn, lead to a concern with "keeping the numbers up" (that is, rising numbers of arrests, of amounts of illegal drug seizures, of indictments, and longer jail sentences). Politicians are eager to show they are meeting the challenge of the "Drug Crisis," so they vote more money for law enforcement and for tougher sentences. Law enforcement managers, concerned with questions of reappointment, bureaucratic power struggles and budgetary fights, similarly "keep the numbers up" to show they are doing their jobs. This may not necessarily mean simply churning out numbers, but also staging raids and arrests which will garner press attention. Of course, those opportunities sometimes are generated fortuitously.
A few months ago, one of the authors of this paper participated in an investigation which resulted in the seizure of a large number of kilos of very nearly pure cocaine. While the subjects of the investigation were being interviewed, one of the investigators' supervisors, without consulting any of the other persons responsible for the investigation, telephoned the press relations office of his agency and arranged for news of the seizure to be released. While this was going on, the persons conducting the interviews were devising a plan to continue the investigation which was dependent on the "owners" of the "stash" being unaware of its seizure. Without divulging any additional details (the investigation, at the time of this writing, is still in progress), we can say that the persons initially apprehended were no more than two rungs underneath the Medellin Cartel's American management. The case investigators were startled to discover that listeners of at least one all-news radio stations already knew how much cocaine had been seized, and from where. The plan to move up the ladder of this particular drug organization had to be scuttled, at best delaying and at worst terminating a potentially fruitful opportunity. The need to score points with a public, (and politicians), hungry for proof that the "drug war" is being fought decisively won out over sensible investigative techniques.
In local police agencies, the "number" is usually that of arrests, for the DEA the number is kilograms seized, and for district attorneys' and prosecutors' offices the numbers are indictments, convictions, and conviction rates. These differing goals sometime create conflict between prosecutors, who want strong prosecutable cases, and investigators, who may be more interested solely in the number of arrests. For a prosecutor's office caught between an expanding caseload and public pressure for impressive conviction rates, stronger cases mean more wins at trial, and more leverage in plea negotiations, and therefore fewer trials. More leverage in plea negotiations translates into more guilty pleas and longer sentences. In areas where prosecutors must run for reelection in contested races, rates of conviction, and long sentences may mean the difference between winning and losing.
Police officials must justify their budgets (and their positions), and are "expected" by the public and many political leaders to produce results, and that is particularly true where a controversial issue such as drugs are concerned. If the question asked of them is "how many people are you arresting?" The quality of those arrests recedes as soon as any political pressure to increase the numbers appears. Police bureaucracy may not be concerned with whether the arrests are prosecutable or not; they just need high numbers in order to show to the public that they are "doing their jobs."
This mania for "numbers" is one of the tenets of the "war on drugs." Like the daily body counts in Vietnam, it is the gauge of bureaucratic success. It is the way that public officials and bureaucrats can claim that they are "winning" (or "losing" if that is the point to be made) the war; the public has been taught after 20 years of listening to the rhetoric of the war on drugs that numbers are how victories and losses are declared. (However, it is possible to "unlearn" that lesson if empiricism — the conclusion that drug traffickers are ruining your neighborhood — teaches differently). If the "numbers" are up then we must be doing okay; if they are down we have to do something else to get them up again. But, bringing the numbers up is not that difficult, and it usually has little relationship to the strength or weakness of the drug trafficking economy as a whole. It's easy (relatively speaking) to go after street dealers since they are visible and plentiful; but actually disrupting the structure of the business itself requires long, painstaking, dangerous and unreliable investigations.
In New York, another popular method of increasing the "body count" is to count summons (tickets) in the same category as arrests. This means that when, at the end of the month, arrest totals look low, teams of narcotics investigators will be directed to issue summonses to marijuana possessors. Marijuana purchasers will be observed making their purchases, and will then be apprehended. The marijuana will be seized, and the buyer will then either be given a summons on the street, or brought into the station under arrest and given a desk appearance ticket, a more elaborate version of a summons.
Tactical and strategic decisions are often made primarily for the purposes of generating photo opportunities. The pictures are not unfamiliar: police brass and politicians standing behind a table on which are arrayed guns, drugs, money, scales and other paraphernalia; quotations are given regarding the so-called "street value" of the contraband seized. The other basic scenario has to do with depicting the arrests of defendants, and comes in two flavors: footage of defendants being walked into a court or police facility, often shielding their faces from the cameras, or footage of the actual raids and arrests.
The New York City Police Department (NYPD) has run several operations, code-named "GEMINI," in the Washington Heights neighborhood of Manhattan, an area with a large open retail and wholesale cocaine market. The GEMINI operations involved making a large number of undercover sales on a particular block, and then simultaneously executing a large number of search warrants and making many arrests. TV news crews are brought along in surveillance vans, and encouraged to videotape the ensuing chaos. (In one of the recent GEMINI operations, TV news personnel were seen on the street the day before the arrests. Many of the traffickers made themselves scarce until after the raids.)
The use of the news media in law enforcement isn't necessarily improper, or useless. The cause of deterrence may well served when news reports place offenders on notice that their conduct may be punished. Problems arise when, on the one hand, publicity becomes the tail which wags the dog of enforcement, or when the tough-talking publicity is in effect, a hollow threat. Nothing undermines deterrence more quickly than promises that can't be kept.
Occasionally the use of the news media for staged events has partisan political motives. In October of 1988, roughly one month before the presidential elections, the Bureau of Alcohol, Tobacco and Firearms (BATF) staged a series of arrests and raids against Jamaican-organized crime groups in New York City during a visit by then-candidate George Bush. The implication of the news pieces was that the arrests were the culmination of a large-scale investigation. According to several federal law enforcement sources involved in the operation, the BATF — an agency which has, with relatively few agents, made the best progress of any federal agency in attacking Jamaican organized crime groups — collected all of their outstanding arrest warrants against Jamaican offenders. They had then prevailed upon various units of the NYPD conducting Jamaican organized-crime investigations, and asked if the NYPD units had any open warrants that could be executed during Bush's visit. By "assisting" the NYPD, the BATF was then able to take credit for the execution of those warrants. Thus, an incumbent vice president looked tough on crime while in town making a campaign stop for President. We are unaware of any comment on this by the Dukakis campaign. More disturbing, no one in the New York or national press corps seemed either to be aware of or to care about the shameless manner in which they were being manipulated.
Please don't misunderstand our point. Most if not all of the offenders arrested were members of dangerous trafficking groups, groups dominated by sociopaths. But these arrests were not timed for their investigative value, nor to maximize their effect in terms of law enforcement purpose. They were done to make George Bush look tough. Police agencies do not stand alone with respect to this sort of chicanery. District attorney's offices routinely engage in equally cynical maneuvers. Prosecutors — and here we speak of prosecutor's offices in New York, although the same dynamic presumably operates similarly elsewhere — are just as concerned with the numbers they generate.
Thus, prosecutor's offices, where volume is a concern, are less than eager to conduct tedious and involved investigations of major offenders. This has, relatively, less to do with individual prosecutors than with their leaders. Individual prosecutors are often personally motivated to "go after the big guy," either out of a sense of fairness, efficacy, or personal pride. But for the managers of prosecuting agencies, it is imprudent to "waste" a young prosecutor on a case which may, for instance, take four or five weeks of attorney time when the same attorney can prosecute dozens of low-level street dealers.
What is not common knowledge — even among prosecutors — is that in New York State, District Attorney's offices have a second source of income, apart from direct funding from the municipalities, or counties they serve: state funding based upon the number of indictments filed. This creates enormous pressure to maximize the number of indictments filed — the more indictments, the more money. In a period in which many local governments — and New York City's is certainly no exception — are hard-pressed financially, the temptation to orient prosecution to "mass-production," as it were, grows ever greater.
This concern with numbers can have life-threatening consequences for both police officers and the public.
In the first instance, any time that law enforcement resources are diverted from the apprehension and prosecution of violent offenders, we all suffer. Every prosecution of a nonviolent street offender is time wasted that could be spent on more difficult, more violent targets.
This brings to light a fundamental problem with almost all drug prosecutions: while drug prohibition is rationalized on the basis of the relationship between drugs, drug trafficking and violence, investigations and prosecutions of violent crime on the one hand and narcotics on the other hand are rarely, if ever, coordinated.
Productivity and safety are at odds at the most elemental tactical levels. The emphasis on "numbers" generation and productivity often means direct and indirect shortcuts with respect to safety. Having to produce numbers means shoddy investigations. Any shoddy investigation which leaves a potentially dangerous offender out of prison instead of in is a threat to society at large. It is also particularly dangerous if, during the course of a trial, that offender gets to see the face of an undercover police officer.
For instance, search warrant executions, which are extremely dangerous, are best and most safely conducted with planning, reconnaissance and rehearsal. Even the best-prepared raid can go awry, resulting in the deaths of offenders, officers, and bystanders. The execution of narcotics search warrants and other raids account for 32 percent of the fatalities related to narcotics among law enforcement officers over the period 1978-1988. Thorough preparation is immensely time-consuming. A day spent in planning for the execution of a search warrant may, for police managers, be a day "wasted" — a day not spent in generating enough information to apply for another search warrant, a day not spent in arresting more traffickers.
Pressure to produce numbers often also forces individual police officers, already engaged in stressful and dangerous work, into taking unconscionable risks. Officers newly assigned to under- cover work with little or no experience may be directed to make purchases from dangerous sellers. In New York City, the pressure to produce numbers often results in narcotics officers working in smaller-than-normal teams, in order to produce a larger number of arrests per officer.
After pointing out these considerations of law enforcement deficiencies in the enforcement of drug laws, we do not accept the hypothesis that if deficiencies can be rectified, that somehow law enforcement could indeed wage a successful "war on drugs." In fact, our argument is the opposite, that in fact law enforcement cannot ever emerge "victorious" (whatever that may mean). These criticisms do not cite anomalies that can be rooted out by a zealous reformation of our law enforcement scheme. They are in fact NECESSARY CONSEQUENCES of our law enforcement approach. They are the inevitable policies that result from an ill-conceived premise: that law enforcement can and should be a primary tool for accomplishing political goals and altering the individual behavior of the citizenry. The root causes of the problems we have discussed above must ultimately be laid at the feet of those who have sold us, and have perpetuated, the idea that law enforcement is the theater where the resolution of our national social problems must be played out. If law enforcers must necessarily use and advocate unjust and undemocratic methods, and must increasingly jeopardize their own safety, in order to meet an arbitrary and illusory goal, then they do so because the values that created those policies are unjust, undemocratic and unmindful of the public good.
Perhaps the most stark example of misplaced values, and the dangerous policies generated thereby is the case of hypodermic needle prohibition and AIDS in New York City. The possession of hypodermic needles is criminally prohibited in New York State; a class "A" misdemeanor, hypodermic possession is punishable, in theory, by a sentence of up to one year in jail. While those sentences are rarely, if ever imposed, New York's criminal sanctions prevent IV drug users from purchasing hypodermics at pharmacies, and make them subject to arrest (and their needles to confiscation) if caught. Consequently, there is an illicit market in hypodermic needles. Anecdotal evidence suggests prices ranging from between one to $5 per syringe. Many IV drug users, however, share needles either to avoid the cost of purchasing them, or because they are not available. Since even inexpensive "disposable" syringes can be used repeatedly — albeit at great risk — the sharing of needles is widespread.
In 1985, a limited needle exchange program was proposed in New York City. Three years later, despite intense opposition from law enforcement and black and Hispanic leaders, the program started. The program became an issue mayoral campaign of 1989, when the two leading candidates, including the current mayor, David Dinkins, made opposition to needle exchange, even on an experimental basis, part of their campaigns, and the program has now been ended. This year, Mayor Dinkins and Health Commissioner Woodrow Myers attempted to terminate a feature of a city- funded program which conducted outreach with IV drug users and, among other activities, distributed small bottles of bleach with instructions on how to disinfect syringes using the bleach.
Although needle distribution has also come under fire from other quarters, it has been greeted with widespread derision and criticism by law enforcement officials.
To the best of our ability to investigate this matter, through contacts in most (although not all) of the law enforcement agencies in New York, no agency (outside the Health Department) ever gave any serious thought whatever to the epidemiological consequences of hypodermic syringe prohibition.
In the case of hypodermic prohibition and AIDS — as in the drug war generally — decisions are being made on a symbolic level, which is perfectly consistent if one sees law enforcement as a set of symbols rather than as a set of agencies involved in a more or less rational enterprise within the context of a democratic society. However, if one sees law enforcement agencies as involved in attempting to solve or mitigate stated social problems (for example drug use and misuse) the decision-making processes we've outlined have deeply troubling implications.
In public debates and all the public portrayals (fictional and journalistic) law enforcement is the genre in which we perform and observe our national passion plays. If one of Japan's metaphors for self-identity is the samurai, America's myths and fables about cops and robbers are the folklore through which we transmit and reinforce many of our values. The police officer or administrator, and, less frequently, the prosecutor, is the image of moral authority and icon of social control, and the values conveyed by those figures are generally implied rather than explicitly stated. With respect to symbolic value it matters not whether we generate those values through fictional television and movie characters or through press conferences and "live" TV news footage.
One of the difficulties is that our values as a national community are hardly homogeneous, despite attempts by dominant groups to transmit them, and that at best we are ambivalent about many of the actual issues raised by illegal drugs, illegal drug trafficking and illegal drug use.
How does this relate to the issue of hypodermic syringe distribution in New York City? It means that leading public figures can discuss the issue only in the vaguest of moral terms, and can almost entirely ignore the economic and public health implications of their unarticulated moral stance.
The moral argument made by anti-needle law enforcement officials is generally stated as an antipathy to "encouraging" or "sanctioning" IV drug use. New York's Mayor David Dinkins has said, "I do not wish to see people assisted in becoming addicted."
Since IV drug use is immoral because it is illegal and/or inherently immoral, the reasoning goes, allowing unfettered access to syringes or actively providing syringes to IV drug users is akin to providing a person a firearm with which to commit suicide, or to providing a person an instrument with which to break the law.
In the first instance it is consistent, prima facie, with moral approbation against IV drug use to oppose easily obtained syringes. If IV drug use is inherently immoral, and therefore illegal, there is a certain logic to obstructing IV drug use by limiting the ease with which one can obtain the necessary instrument, namely the syringe. At that point, the question must be asked: Which is the superior moral position, denying access to syringes to express society's opprobrium and disapproval of drugtaking behavior, or, using every likely means necessary to prevent the spread of a horrific public health disaster? Those who argue that needle distribution is encouraging drug abuse must accept the logical consequences of their position: IV drug users will die of AIDS in large numbers. Those IV drug users will in turn infect their lovers and children. Their lovers and their lovers' lovers will in turn infect others with AIDS. Proponents of needle prohibition must therefore be willing to accept the moral responsibility for the suffering and death from AIDS of persons who are not only not IV drug users, but who are entirely unaware of any IV drug use. To argue that death by AIDS is a public policy goal preferable to trying to maintain the status quo is to carry the "war on drugs" to absurd and almost inconceivable dimensions: that the "war on drugs" is more important than any other single social issue, even one that involves the potential almost certain deaths of thousands.
A large population of IV drug users, already HIV positive, will die unless treatments are devised. Public health policy should be directed at using whatever measures seem likely to help limit that number. Needle distribution is one of those measures.
At no point has any law enforcement official in New York ever publicly questioned whether the struggle to eliminate certain drugs from our society is worth the risk of the deaths of the citizens they are (in theory) trying to save. No law enforcement official in New York has ever expressed an opinion that was anything other than a testament to the creed of the "war on drugs": that certain drugs must be suppressed at all costs. This is the real folly of the "war on drugs." By regurgitating the standard litany of platitudes our law enforcement officials (and our politicians) have failed us; they have failed to illuminate all the issues confronting us, and have denied our society the chance to consider all the choices available and, most importantly, the consequences of those choices. Our law enforcement leaders have passed the test of the "war on drugs"; they are "tough" and "strong" and unequivocal in their devotion to the cause (and consequently have gained approval and stature). The tragedy is they have failed the test of honest and courageous leadership.
The paternalist rationale for needle prohibition is fallacious. The goal of drug (and needle) prohibition is to save drug users from themselves, from drug use. Abandoning IV drug users to AIDS says, in effect, that we don't really care about these péople. The only conceivable defenses of this policy would be that AIDS as "punishment" for drug use will deter other drug users — somewhat akin to sacrificing quarantined sufferers of a contagious disease; and the brutal notion that the best way to deal with illegal drug users is for all of them to die. The public debate about hypodermic syringes would be well served if these ideas could make it into the open, so that we could discuss IV drug users as sentient beings capable of suffering, instead of as the abstract bearers of moral approbation. Needle prohibition disenfranchises IV drug users by making it difficult or impossible for them to act responsibly toward themselves and others.
Finally, no defense of needle prohibitions justifies their effects on the sex partners of IV users and the sex partners of sex partners of IV drug users, etc.
This is, in fact, the paradox of prohibition.
Prohibition is a policy which purports to act on behalf of the common good, but whose underlying assumptions are never examined in public, and are never examined carefully by those who create and implement it. Those policy-makers, rather than being motivated by the public good, are driven more by personal gain and political advantage than by the public good, which receives lip service and little else in the enforcement of laws against drugs.
Arthur McBride and John T. Shuler. Arthur McBride is a psuedonym for a front-line law enforcement officer who requested anonymity for fear of reprisals by his agency. John T. Shuler is an attorney in New York.