Drugs

How The Drug War Corrupts Our Institutions

The evidence has been compelling for decades that the policy of drug prohibition corrupts our institutions into creating more harm rather than mitigating it.

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This past week, I came across one of the most astounding oral arguments I have ever heard, which took place in the Fourth Circuit regarding the case of Julian Betton. Given the cruel facts of the Julian Betton case, the brutal criticism that the lawyer representing the police officers received from the judges seems deserving. After all, the record shows that officers in the case clearly lied (their attorney tries to distinguish the lies as “falsehoods” which may be the most cringeworthy moment of the entire oral argument) about a raid conducted at the home of Julian Betton. During the raid, the officers broke down Betton’s door and within seconds began firing a total of 57 shots, hitting Betton nine times and leaving him paralyzed. This is the part where I tell you that all the firepower brought to use against Betton — the battering ram to his door, his subsequent paralyses, the entire violent confrontation — was engaged in because of two $50 cannabis sales.

In their reports on the raid to the Betton home, the officers first claimed they knocked and announced themselves as police before entering, and they also claimed that Betton fired a handgun at them. In what is becoming an all too familiar story, however, video evidence would completely refute these initial claims by police as to why a confrontation turned violent. Turns out, Betton had a security camera, and the footage clearly showed that not only did the officers not knock and announce themselves — as the warrant required — before taking a battering ram to Betton’s door, but that no officers were wearing any clothing that could have reasonably identified them as police. Coincidently or not, police body cameras were not turned on until after Betton was shot while ballistics tests would later confirm that Betton never fired the shot officers claimed justified their unloading of 57 bullets. Even if Betton had fired, however, it is important to note that the facts show the failure to knock and announce means Betton would have been justified in defending himself, as other, similar cases have demonstrated.

What is astounding about the oral argument in Betton’s case, however, is not the actions of the officers, or their clear attempts to lie about their actions, as these are regularly defended facts in qualified immunity cases. No, what is astounding is that the judges in the Fourtg Circuit actually took those who represent the officers to task. Indeed, the judges actually criticized the absurd qualified immunity standard those representing law enforcement were asking the court to adopt in the Betton case. Such criticism or the refusal to apply immunity is an extremely rare occurrence. Even in cases where the actions of the officers mirror or are substantially similar to the reckless disregard to life and other constitutional rights as detailed in the Betton case.

Take, for example, an earlier case from this year in Corbitt v. Vickers. This is a case where a police officer, Matthew Vickers, shot a 10-year-old child “accidentally” after repeatedly discharging his weapon — during a nonviolent confrontation with a suspected criminal in an area with children present — at a family dog the Eleventh Circuit admitted the record showed was not threatening the officer with harm. In Vickers, however, the Eleventh Circuit used Supreme Court precedent to hold that no reasonable officer would have known that even when facing no apparent threat, firing a lethal weapon in the direction of children would violate a constitutional right. Having such a toothless judicial standard applied to police tactics used in the brutal drug war results in substantial societal harms within entire communities that have little to no chance of having their regularly occurring constitutional violations remedied.

The drug war also incentivizes changes within law enforcement discretion and resource allocation from mitigating harm to being more about policing for profit regardless of guilt or innocence. Nothing I am saying here is new of course, but it is still worth stressing upon because the criticism expressed by the Fourth Circuit judges in the Betton case is more rare than it should be, than what our constitution should allow. I want to tell you or believe that the Fourth Circuit, or other equally rare instances of judicial criticism, signifies that a tide within the judiciary could be turning towards demanding more accountability for constitutional violations committed by agents of the government, but there is simply no evidence to support it.

In the political realm, the current situation is equally as dire. The latest bill passed through Congress that, in part, sought to reform the institutional harms that have come out of the drug war was met with an obscene amount of false fearmongering. Because of the fearmongering the bill was made significantly more modest than its supporters might have hoped for and in the end its provisions applied to only 1.5 percent of a federal prison population that makes up less than 10 percent of the overall prison population here in the United States.

Moreover, despite constantly touting his support for the First Step Act, the current president has chosen instead to underfund its provisions by 80 percent. The president has also unilaterally introduced federal policies that in practice undermine state legislative reforms to abusive property forfeitures, and make it harder to investigate and reform police departments with a pattern of abuse. So, while I am rather ecstatic to see a court respond in the way the Fourth Circuit did in the case of Julian Betton, I’ll continue to be skeptical this sort of reaction will become the regular occurrence our Constitution requires that it should be.

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Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

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