During my years as a criminal defense attorney I often found myself shocked at the degree to which minor, non-violent criminal offenses were intensely prosecuted by all levels of the criminal justice system. I certainly did represent some nasty individuals over those years, but I also had more than my share of reasonably normal folks who just happened to have been caught doing harmless but law-breaking things. Many of those defendants were charged with various drug crimes. Here’s an example of the kind of individual I’m talking about, as originally reported last week by the New York Times’ Jim Dwyer.
On a Saturday evening in August, a police officer stopped a car in which Anthony, a 28-year-old bus driver, was a passenger. Anthony and the driver, a friend who was giving him a ride home from work, are both black, both with no prior arrests. The officer’s report says he stopped the car for a tail light infraction (the bulb needed replacing).
He ordered both men to get out of the car. When they had, the officer conducted a visual search of the car. He claims he found a small marijuana pipe in the center console between the front seats. (I will mention in passing that in such a routine stop, the officer would not have been permitted to search the vehicle; anything he saw would have to have been in plain view.) The pipe was empty, but the officer, on smelling it, sensed that it had some residue in it. He placed both men in handcuffs and confiscated the pipe, telling both men that he was arresting them for possession. Anthony protested that it wasn’t his car and that he was just a passenger, having just gotten into the car ten minutes earlier, which his friend confirmed. The officer was not persuaded. The law allows anyone in a car where contraband is found to be charged with possession of the contraband.
Now here’s a little bit more about New York’s law on marijuana possession. For less than an eighth of an ounce (any residue in that pipe would certainly have been far less than that amount) the crime is only a citation, not even a misdemeanor. The citation would subject the defendant to a small fine for a first offense. But the officer charged Anthony and the driver with a full misdemeanor, claiming that the pipe was “in a public place, open to public view.” (I’ll mention in passing that it is hard to imagine that anyone on being pulled over wouldn’t close a center console if a pot pipe were really visible in it; but we all know that police officers never lie.)
Now here’s where the story gets bad (or maybe worse should be the operative word). At the station house where Anthony and the driver were taken, they were fingerprinted and released on their own recognizance. Two weeks later, while awaiting his court date, Anthony was laid off from his bus driver job. The company had gotten the finger print report from the court docket. He was told he could reclaim his job when he proved his innocence.
Anthony’s annual salary at the bus company is $40,000. The loss of his income for the two months while he was awaiting trial caused him to go in debt. He had to move out of his apartment and move back in with his parents. On the trial date, his friend was allowed to plead guilty to a minor traffic violation (a plea bargain), but since Anthony wasn’t the driver, he didn’t get that offer.
Instead, he was offered to have his case dismissed after one year if he had no other offenses during that time. That was the best deal his public defender could get for him. (Going to trial was not deemed an option since we know that police officers don’t lie and criminal defendants often do.)
So now Anthony will be out of work for a year (or more probably will work minimum wage jobs to keep himself together) for a crime that he didn’t commit (if indeed a crime had been committed at all). And what was that crime? At worst it was having a marijuana pipe with some residue of marijuana in his possession “in a public place open to public view.” Really? That is what our fine law enforcement and criminal justice system is all about?
If you are a law-and-order type (whatever that means in today’s do-anything-just-don’t-get-caught society), you may be saying something like, Anthony should have been more careful about the friends he picks. Or maybe you would say, the law can’t make exceptions because once you do, you’re encouraging lawlessness. Or maybe you just shrug and say it isn’t a perfect world.
My own most recent brush with this kind of overzealous law enforcement occurred when I was vacationing with my wife in Tahoe several years ago. I was driving us back from a round of golf when I got pulled over for speeding. I was clocked at 70 on a straight stretch of a county road that was barren of traffic on that sunny afternoon. The officer was clearly filling a quota for the county in writing my citation, but I wasn’t about to point that out to him. Having seen the justice system from the inside, I knew all too well that an angry highway patrol officer is likely to see other things that are citable or worse. So, I grumbled something to the effect that I wasn’t driving unsafely and that the long stretch of straight highway made travelling at 55 under those conditions almost impossible. He wasn’t interested in my mini-rant.
I paid a hefty fine that I could easily afford. But as I did, I thought about all the poor working stiffs who are also facing that kind of punishment for doing something that shouldn’t be of concern to anyone and doesn’t put anyone at risk.
It’s called criminal justice, but don’t let the title fool you. As the sign read on the desk of a public defender I knew many years ago: There is no justice.