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Thursday, May 29, 2008

Drug Prosecutions: Racial Disparity, San Diego State and U.S. News Rankings

Human Rights Watch recently reported that the depressing old story that African Americans are disproportionately drug defendants remains true. (News story here.)  One reason may be political;  drug search warrants of wealthier, whiter neighborhoods have a higher success rate (see Lawrence Benner, Racial Disparity in Narcotics Search Warrants, 6 Journal of Gender, Race and Justice 193 (2002)) suggesting that the standards are higher to search there.  The police understandably avoid making mistakes with people having the power to retaliate: "If you search the King, the King must be holding."

There are, I am willing to bet, active drug networks at Andover and Spence, at Williams and Harvard, but generally, they are let alone unless they go out of their way to attract police attention.  That's why the recent DEA drug investigation and raid at San Diego State University is so interesting. 

Leaving affluent kids alone is, I think, essential to the political stability of the War on Drugs.  Why don't headmasters and deans at elite schools beg for the services of undercover narcotics investigators, who could develop solid cases against young dealers for multiple felonies and then pack them off to state prison for double-digit terms (forfeiting their trust funds in the process, of course)?  Would that not delight parents and fellow students would then be protected from these criminals?  My bet is that parents and students would instead say that police have better things to do than arrest good young people for conduct that millions have engaged in, conduct which, at least as to these kids from fine families, warrants rehabilitation and treatment, not punishment.    

This approach was abandoned at SDSU, where 75 students were arrested and charged with serious crimes.  (NPR story here).  So we are given a perfect conflict: Strong cases based on months of investigation of sitting ducks with a complete lack of basic drug dealer professionalism, serious charges that could send these kids to state prison, and affluent defendants whose parents (and I can hear the popping of champagne corks even here in Tucson) are about to confer a substantial windfall (75 defendants!) on the   best criminal defense attorneys in Southern California.

The leadership of SDSU has sown the wind, and now reaps the whirlwind.  What happens next?   Are these kids on the conveyor belt to prison as if they were  ordinary street dealers from the hood?   If so, and maybe even if not, there may well be substantial negative reputational and admissions consequences for SDSU.  "[A]lmost half the nation's 5.4 million full-time college students abuse drugs or alcohol at least once a month." With a 21 year old drinking age and minor-in-possession laws, half of all college students are at legal risk every month, and no law makes them attend SDSU or any other particular college.  Kids considering experimenting with drugs or alcohol are less likely choose SDSU if they have an alternative that does not boast about its exchange program with San Quentin; parents don't want their kids to take drugs, but I don't think most believe that prison should be a first resort should their children make bad choices.   In any event, because prisoners cannot enroll for classes or pay tuition (and drug offenders cannot get financial aid),  encouraging prosecution of the substantial fraction of substance abusing students is, as a practical matter, unlikely to be a workable strategy for higher education.

On the other hand, perhaps traditional arguments about who the dangerous offenders are will prevail, and most of these kids will get diverted and sent to Hazleden.  If so, the police will be furious that they laid their lives on the line--some of the San Diego Scarfaces had guns--for nothing.  Law enforcement will not soon return down that particular road when they can spend their time on cases that will stick.  Equally importantly, if these kids get special treatment, the questionable demographic effects, the apparent selective enforcement, inherent in the War on Drugs will be highlighted once again in the context of a case that made national news.

The unsatisfactory nature of either outcome explains why both universities and law enforcement authorities have regarded this kind of operation as a lose-lose proposition--have a mandatory drug education day instead.  My prediction is that the university-law enforcement partnership for undercover drug investigations is an idea whose time has not come, and the SDSU administration's approach will not be emulated by other institutions of higher learning.

Posted by Marc Miller on May 29, 2008 at 01:38 AM in Criminal Law | Permalink


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The point is well-taken that if young white kids, particularly rich ones, were targeted by police as much as they should be for their drug-related activities, then the drug laws would change dramatically. But why isn't that an argument for arresting more young white kids, particularly rich ones, for drug crimes? I imagine it would alleviate many of the IP piracy problems we have, too.

Posted by: Not Sarcastic | May 29, 2008 2:53:51 AM

"This looks bad for the whole Greek system."
-- Adam Klein, 23, a business major and member of Phi Kappa Theta fraternity quoted in Tony Perry’s May 7, 2008, Los Angeles Times article, "96 Arrested in San Diego State Drug Bust."

An undergraduate SDSU business major said that? Is he also reading for a sociology minor? Or did he just happen to stumble upon an utterance that might have had a very different and esoteric meaning had it come out of Pierre Bourdieu's mouth? Maybe Bourdieu, to avoid unscholarly ambiguity, would have replaced the words 'Greek system' with 'Western culture'.

Bourdieu was near-obsessed with the ways class, culture, and power interact. Using his ideas about cultural capital and cultural reproduction, one might conclude that the negative, prestige-decreasing effects of hundreds of embarrassing drug busts at the most revered institutions of Western culture, our universities, would be too costly. The best and brightest of Western culture's progeny make up our universities. Moreover, unless I misunderstand how our academic pecking orders are supposed to work, our best and brightest get better and brighter as our universities' prestige levels (feel free to read as 'U.S. News and World Report rankings') get higher, so I suppose embarrassing criminal drug busts would be much more culturally damaging if those busts occurred at universities much more prestigious than SDSU.

Our most prestigious universities are the vanguards of Western culture; they symbolize and reproduce Western cultural excellence. They have standards, an image, to maintain. And we must be perpetually convinced that the reprobate cocaine-snorter, weed-puffer, meth-smoker, or X-popper is far, far less likely to roam our finest universities than he is to roam The Wire’s West Baltimore streets. The failure to perpetually convince us that this is a fact might disrupt or hinder the cultural reproduction process.

Western cultural capital might be devalued too much if we begin to thoroughly investigate and arrest affluent student-scholars (or university professors, or university administrators) for illegal drug use at our universities too much. Lower the value of that cultural capital too much and things fall apart, culturally. Too many will begin to question whether Western culture, at least the modern Euro-Americentric version most rewarded through our finest universities and our most fortunate Fortune 500 corporations, deserves its eminent status. We, Western culture's champions, probably can't afford to have too much of that potentially damaging questioning going on.

Perhaps I've allowed Pierre Bourdieu's writings on cultural capital and cultural reproduction to influence me too much. After all, his (at least the ones I can grasp) are more like philosophy than hardcore social science. And he has excellent critics who have poked plenty of holes in his system. People like me, non-scholar generalists who dare to use Bourdieu's simpler, oft-criticized theories to analyze social phenomena, might be more error-prone than those who would only trust the products of more reliable social scientists, such as behavioral economists and law and economics scholars who know how to "nudge" people or political scientists who know which interest groups have much more clout relative to other interest groups, how they manage to keep their clout, and how they use all that clout to ensure that their will be done.

Posted by: E.C. Hopkins | May 29, 2008 7:03:27 AM

This post repeats a common mistake made with special frequency by law professors -- the claim that enforcement of drug laws in the inner city reflects some form of invidious discrimination.

Drugs have had far more destructive effects on impoverished inner-city communities that wealthier and far more stable communities. Indeed, there is something approaching a consensus among criminologists that the enormous spike in urban violent crime rates in the late 1980s and early 1990s was a consequence of the introduction of cocaine into those communities. At the same time, however, violent crime rates among whites and outside of central cities were relatively stable. Any rational law enforcement policy would accordingly deploy disproportionate resources to the inner city, where drugs are most destructive. I write about this at greater length here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=804684

Why then, are law professors so consistently troubled by drug enforcement efforts targeting the inner city? Probably because they don't live there. Among those who do, views are quite different.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | May 29, 2008 12:33:37 PM

"This post repeats a common mistake made with special frequency by law professors -- the claim that enforcement of drug laws in the inner city reflects some form of invidious discrimination."

Did Jack Chin's post actually make that claim, that "mistake," explicitly? Wouldn't it have been more charitable (or accurate) to have read him as making the claim that the "Leaving affluent kids alone" policy or the relative nonenforcement of drug laws in university communities reflects some form of undue invidious privilege affluent student-scholars enjoy? Maybe something like a race-subsidy or class-subsidy (as opposed to a race-tax or class-tax) of some sort?

Posted by: E.C. Hopkins | May 29, 2008 1:57:58 PM

E.C. Hopkins thinks I have jumped to an unwarranted conclusion. Have I? Jack Chin writes: "Leaving affluent kids alone is, I think, essential to the political stability of the War on Drugs." That claim is, I think, dead wrong. The focus that many police departments have on unstable, disadvantaged neighborhoods is amply justified because that is where law enforcement resources are most needed. Scarce resources should be deployed where they can do the most good. In any event, even if E.C. Hopkins is correct that Jack Chin's claim is instead that "'Leaving affluent kids alone' policy or the relative nonenforcement of drug laws in university communities reflects some form of undue invidious privilege affluent student-scholars enjoy," the error is just the same. There is no "undue invidious privilege" enjoyed in relatively wealthy, stable communities if police elect to target enforcement resources at those relatively disadvantaged, unstable neighborhoods where the social costs of drugs is greatest.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | May 29, 2008 7:39:05 PM

It's one thing to say that drugs are bad for impoverished inner-city communities, and it's another to say that increased police attention in response is good for those communities. Research shows that the community-level effects of mass incarceration ultimately increase criminal activity.

Now, if you're talking about 4A searches as a matter of 4A law, this point isn't all that important -- but it is if you're talking about government drug enforcement and police policy.

Posted by: joe | May 29, 2008 8:27:35 PM

Scarce resources should be deployed where they can do the most good.

The problem here is that police build databases of likely hits based on their prior hits. So if they arrested poor blacks in poor neighborhoods before, they have a database of poor blacks that helps to arrest more poor blacks. The argument is that resources should be allocated to where the actual drug-related activity is, not where police perceive they can get more collars, based on the previous collars they have gotten. There is plenty of drug-activity in colleges amongst rich white kids, and so every reason to start raiding there. The social gain in the perception of a fair system that treats all equally under the law far outweighs whatever you are using to gauge "social cost".

Posted by: Equal Protection Means Locking Up More White Kids | May 29, 2008 10:07:04 PM


How much do we really disagree? You claim that "any rational law enforcement policy" would focus on the inner city, and, given limited resources, not focus on other places. So I take it your view is that operations like the SDSU job not only are outliers, as I blogged, but should be outliers, because they are irrational expenditures.

You say I am "dead wrong" about the political necessity of not doing these kinds of operations on a regular basis. But if you are right that they are not the central part of "any rational law enforcement policy," would the irrational allocation of resources not generate a political response, just as it would if the police bragged of 100% enforcement of littering ordinances while rapists ran free? Forgive me if I am misunderstanding your point, but are you saying that I am "dead wrong" in thinking that a change from what you regard as a rational policy to an irrational one would generate a political reaction, particularly when the costs of the irrational policy would be imposed on a politically powerful group?

We part company on the question of whether a strategy deploying disproportionate resources to the demand would be irrational. Focusing on affluent, non-inner-city, buyers, if they are a sufficiently large part of the market (as they probably are, because the rich have more money than other people), might work better than focusing on sellers. If a drug buyer is locked up, the market does not create another buyer as a replacement. The effect is the same with rapists, robbers and murders; locking them up means an absolute reduction in crime. But when a drug seller is removed from the market, the demand and therefore financial rewards remain, creating an incentive for someone else to step into the business. This is a logical argument about an empirical question, but focusing on demand might work better, so I would consider it a rational law enforcement strategy unless and until it is proven a failure.

I also do not agree with the implication in your posts that undercover drug investigations benefit the communities involved, at least compared to available alternatives. If such efforts could rid communities of drugs, it might be different, but of course, for the reasons stated above and many others, it is not as though the War on Drugs has eliminated drugs or drug criminals from the inner city or elsewhere. I look at evidence of actual preferences. Services are not allocated exclusively based on merit, desert, or efficiency; political influence also plays a role. If drug prosecution were a desirable public service like having nearby swimming pools or fire departments, as opposed to an undesirable service, like having a nearby incinerator, affluent communities would demand, pay for and receive more of it. I would bet that of those in the inner city, if given the choice between a sum of money necessary for undercover narcotics investigation and the subsequent prosecution and incarceration of offenders, or that same sum for drug education, rehabilitation, and uniformed cops on the beat to preserve order, most would prefer the latter. Affluent communities choose the latter not because they can't have the enforcement strategy, but because they don't want it.


Posted by: Jack Chin | May 29, 2008 10:32:42 PM


You make some important points, but I don't think they are unanswerable.

Focusing on drug enforcement on buyers at inner city drug markets is a great strategy that I fully endorse, but it is difficult to do. The research shows that the most successful drug-dealing gangs set up relatively stable drug markets at locations readily accessible to affluent buyers from the suburbs, who like to deal with those whom they know at easy-to-find locations. These buyers are therefore unlikely to deal with undercover sellers whom they do not know, and who are not fixtures on the streetscape. The only feasible way to stop this type of market is therefore to disrupt the sales operations by arresting sellers, who are vulnerable precisely because they work at consistent and easy-to-identify locations. As for the effect of these tactics, the city that has driven violent crime lowest is New York, and it has focused on aggressive stop-and-frisk at drug or gun hot spots. As for community preferences, studies consistently show that there is only one variable that is a statistically significant predictor of one's view of the local police. It is not race or income -- it is local crime rate, which has a massive inverse relationship to assessments of local police. The Qunnipiac poll shows that African Americans who live in New York City have a higher opinion of the New York Police today then they did in the time of Mayor Dinkins. Polls also consistently show that African Americans rate drug crime as a greater priority for government than whites, and oppose legalization of drugs at higher rates than whites. When I was in city government in Chicago, I found that the residents of high crime inner city communities did indeed demand greater drug enforcement efforts, consistently. Affluent communities, I quite agree, do not demand greater drug prosecution because they don't need it, but I am unaware of any evidence that the residents of high crime communities feel the same way. To be sure, law professors nearly always seem to believe that the residents of inner city high crime neighborhoods oppose drug law enforcement -- but the evidence supporting that assumption is, as far as I can tell, nonexistent.


Posted by: Larry Rosenthal | May 30, 2008 12:13:14 PM

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