Summary

Neal Scott may die in prison. A 49-year-old Black man from New Orleans, Neal had cycled in and out of prison for drug possession over a number of years. He said he was never offered treatment for his drug dependence; instead, the criminal justice system gave him time behind bars and felony convictions—most recently, five years for possessing a small amount of cocaine and a crack pipe. When Neal was arrested in May 2015, he was homeless and could not walk without pain, struggling with a rare autoimmune disease that required routine hospitalizations. Because he could not afford his $7,500 bond, Neal remained in jail for months, where he did not receive proper medication and his health declined drastically—one day he even passed out in the courtroom. Neal eventually pled guilty because he would face a minimum of 20 years in prison if he took his drug possession case to trial and lost. He told us that he cried the day he pled, because he knew he might not survive his sentence.[1]

***

Just short of her 30th birthday, Nicole Bishop spent three months in jail in Houston for heroin residue in an empty baggie and cocaine residue inside a plastic straw. Although the prosecutor could have charged misdemeanor paraphernalia, he sought felony drug possession charges instead. They would be her first felonies.

Nicole was separated from her three young children, including her breastfeeding newborn. When the baby visited Nicole in jail, she could not hear her mother’s voice or feel her touch because there was thick glass between them. Nicole finally accepted a deal from the prosecutor: she would do seven months in prison in exchange for a guilty plea for the 0.01 grams of heroin found in the baggie, and he would dismiss the straw charge. She would return to her children later that year, but as a “felon” and “drug offender.” As a result, Nicole said she would lose her student financial aid and have to give up pursuit of a degree in business administration. She would have trouble finding a job and would not be able to have her name on the lease for the home she shared with her husband. She would no longer qualify for the food stamps she had relied on to help feed her children. As she told us, she would end up punished for the rest of her life.

***

Every 25 seconds in the United States, someone is arrested for the simple act of possessing drugs for their personal use, just as Neal and Nicole were. Around the country, police make more arrests for drug possession than for any other crime. More than one of every nine arrests by state law enforcement is for drug possession, amounting to more than 1.25 million arrests each year. And despite officials’ claims that drug laws are meant to curb drug sales, four times as many people are arrested for possessing drugs as are arrested for selling them.

As a result of these arrests, on any given day at least 137,000 men and women are behind bars in the United States for drug possession, some 48,000 of them in state prisons and 89,000 in jails, most of the latter in pretrial detention. Each day, tens of thousands more are convicted, cycle through jails and prisons, and spend extended periods on probation and parole, often burdened with crippling debt from court-imposed fines and fees. Their criminal records lock them out of jobs, housing, education, welfare assistance, voting, and much more, and subject them to discrimination and stigma. The cost to them and to their families and communities, as well as to the taxpayer, is devastating. Those impacted are disproportionately communities of color and the poor.

This report lays bare the human costs of criminalizing personal drug use and possession in the US, focusing on four states: Texas, Louisiana, Florida, and New York. Drawing from over 365 interviews with people arrested and prosecuted for their drug use, attorneys, officials, activists, and family members, and extensive new analysis of national and state data, the report shows how criminalizing drug possession has caused dramatic and unnecessary harms in these states and around the country, both for individuals and for communities that are subject to discriminatory enforcement.

There are injustices and corresponding harms at every stage of the criminal process, harms that are all the more apparent when, as often happens, police, prosecutors, or judges respond to drug use as aggressively as the law allows. This report covers each stage of that process, beginning with searches, seizures, and the ways that drug possession arrests shape interactions with and perceptions of the police—including for the family members and friends of individuals who are arrested. We examine the aggressive tactics of many prosecutors, including charging people with felonies for tiny, sometimes even “trace” amounts of drugs, and detail how pretrial detention and long sentences combine to coerce the overwhelming majority of drug possession defendants to plead guilty, including, in some cases, individuals who later prove to be innocent.

The report also shows how probation and criminal justice debt often hang over people’s heads long after their conviction, sometimes making it impossible for them to move on or make ends meet. Finally, through many stories, we recount how harmful the long-term consequences of incarceration and a criminal record that follow a conviction for drug possession can be—separating parents from young children and excluding individuals and sometimes families from welfare assistance, public housing, voting, employment opportunities, and much more.

Families, friends, and neighbors understandably want government to take actions to prevent the potential harms of drug use and drug dependence. Yet the current model of criminalization does little to help people whose drug use has become problematic. Treatment for those who need and want it is often unavailable, and criminalization tends to drive people who use drugs underground, making it less likely that they will access care and more likely that they will engage in unsafe practices that make them vulnerable to disease and overdose.

While governments have a legitimate interest in preventing problematic drug use, the criminal law is not the solution. Criminalizing drug use simply has not worked as a matter of practice. Rates of drug use fluctuate, but they have not declined significantly since the “war on drugs” was declared more than four decades ago. The criminalization of drug use and possession is also inherently problematic because it represents a restriction on individual rights that is neither necessary nor proportionate to the goals it seeks to accomplish. It punishes an activity that does not directly harm others.

Instead, governments should expand public education programs that accurately describe the risks and potential harms of drug use, including the potential to cause drug dependence, and should increase access to voluntary, affordable, and evidence-based treatment for drug dependence and other medical and social services outside the court and prison system.

After decades of “tough on crime” policies, there is growing recognition in the US that governments need to undertake meaningful criminal justice reform and that the “war on drugs” has failed. This report shows that although taking on parts of the problem—such as police abuse, long sentences, and marijuana reclassification—is critical, it is not enough: Criminalization is simply the wrong response to drug use and needs to be rethought altogether.

Human Rights Watch and the American Civil Liberties Union call on all states and the federal government to decriminalize the use and possession for personal use of all drugs and to focus instead on prevention and harm reduction. Until decriminalization has been achieved, we urge officials to take strong measures to minimize and mitigate the harmful consequences of existing laws and policies. The costs of the status quo, as this report shows, are too great to bear.

A National Problem

All US states and the federal government criminalize possession of illicit drugs for personal use. While some states have decriminalized possession of small amounts of marijuana, other states still make marijuana possession a misdemeanor or even a felony. In 42 states, possession of small amounts of most illicit drugs other than marijuana is either always or sometimes a felony offense. Only eight states and the District of Columbia make possession of small amounts a misdemeanor.

Not only do all states criminalize drug possession; they also all enforce those laws with high numbers of arrests and in racially discriminatory ways, as evidenced by new analysis of national and state-level data obtained by Human Rights Watch.

Aggressive Policing

More than one of nine arrests by state law enforcement are for drug possession, amounting to more than 1.25 million arrests per year. While the bulk of drug possession arrests are in large states such as California, which made close to 200,000 arrests for drug possession in 2014, Maryland, Nebraska, and Mississippi have the highest per capita drug possession arrest rates. Nationwide, rates of arrest for drug possession range from 700 per 100,000 people in Maryland to 77 per 100,000 in Vermont.

Despite shifting public opinion, in 2015, nearly half of all drug possession arrests (over 574,000) were for marijuana possession. By comparison, there were 505,681 arrests for violent crimes (which the FBI defines as murder, non-negligent manslaughter, rape, robbery, and aggravated assault). This means that police made more arrests for simple marijuana possession than for all violent crimes combined.

Data presented for the first time in this report shows stark differences in arrest rates for drug possession even within the same state. For example, data provided to us by Texas shows that 53 percent of drug possession arrests in Harris County (in and around Houston) were for marijuana, compared with 39 percent in nearby Dallas County, despite similar drug use rates in the two counties. In New York State, the counties with the highest drug possession arrest rates by a large margin were all in and around urban areas of New York City and Buffalo. In Florida, the highest rates of arrest were spread around the state in rural Bradford County, urban Miami-Dade County, Monroe County (the Keys), rural Okeechobee County, and urban Pinellas County. In Texas, counties with the highest drug possession arrest rates were all small rural counties. Kenedy County, for example, has an adult population of 407 people, yet police there made 329 arrests for drug possession between 2010 and 2015. In each of these states, there is little regional variation in drug use rates.

The sheer magnitude of drug possession arrests means that they are a defining feature of the way certain communities experience police in the United States. For many people, drug laws shape their interactions with and views of the police and contribute to a breakdown of trust and a lack of security. This was particularly true for Black and Latino people we interviewed.

Racial Discrimination

Over the course of their lives, white people are more likely than Black people to use illicit drugs in general, as well as marijuana, cocaine, heroin, methamphetamines, and prescription drugs (for non-medical purposes) specifically. Data on more recent drug use (for example, in the past year) shows that Black and white adults use illicit drugs other than marijuana at the same rates and that they use marijuana at similar rates.

Yet around the country, Black adults are more than two-and-a-half times as likely as white adults to be arrested for drug possession. In 2014, Black adults accounted for just 14 percent of those who used drugs in the previous year but close to a third of those arrested for drug possession. In the 39 states for which we have sufficient police data, Black adults were more than four times as likely to be arrested for marijuana possession than white adults.[2]

In every state for which we have sufficient data, Black adults were arrested for drug possession at higher rates than white adults, and in many states the disparities were substantially higher than the national rate—over 6 to 1 in Montana, Iowa, and Vermont. In Manhattan, Black people are nearly 11 times more likely than white people to be arrested for drug possession.

Darius Mitchell, a Black man in his 30s, was among those targeted in Louisiana. He recounted his story to us as follows: Late one night in Jefferson Parish, Darius was driving home from his child’s mother’s house. An officer pulled him over, claiming he was speeding. When Darius said he was sure he was not, the officer said he smelled marijuana. He asked whether he could search, and Darius said no. Another officer and a canine came and searched his car anyway. They yelled, “Where are the pounds?” suggesting he was a marijuana dealer. The police never found marijuana, but they found a pill bottle in Darius’ glove compartment, with his child’s mother’s name on it. Darius said that he had driven her to the emergency room after an accident, and she had been prescribed hydrocodone, which she forgot in the car. Still, the officers arrested him and he was prosecuted for drug possession, his first felony charge. He faced up to five years in prison. Darius was ultimately acquitted at trial, but months later he remained in financial debt from his legal fees, was behind in rent and utilities bills, and had lost his cable service, television, and furniture. He still had an arrest record, and the trauma and anger of being unfairly targeted.

Small-Scale Drug Use: Prosecutions for Tiny Amounts

We interviewed over 100 people in Texas, Louisiana, Florida, and New York who were prosecuted for small quantities of drugs—in some cases, fractions of a gram—that were clearly for personal use. Particularly in Texas and Louisiana, prosecutors did more than simply pursue these cases—they often selected the highest charges available and went after people as hard as they could.

In 2015, according to data we analyzed from Texas courts, nearly 16,000 people were sentenced to incarceration for drug possession at the “state jail felony” level—defined as possession of under one gram of substances containing commonly used drugs, including cocaine, heroin, methamphetamine, PCP, oxycodone, MDMA, mescaline, and mushrooms (or between 4 ounces and 5 pounds of marijuana).[3] One gram, the weight of less than one-fourth a sugar packet, is enough for only a handful of doses for new users of many drugs. Data presented here for the first time suggests that in 2015, more than 78 percent of people sentenced to incarceration for felony drug possession in Texas possessed under a gram. Possibly thousands more were prosecuted and put on probation, potentially with felony convictions. In Dallas County, the data suggests that nearly 90 percent of possession defendants sentenced to incarceration were for under a gram.

The majority of the 30 defendants we interviewed in Texas had substantially less than a gram of illicit drugs in their possession when they were arrested: not 0.9 or 0.8 grams, but sometimes 0.2, 0.02, or a result from the lab reading “trace,” meaning that the amount was too small even to be measured. One defense attorney in Dallas told us a client was charged with drug possession in December 2015 for 0.0052 grams of cocaine. The margin of error for the lab that tested it is 0.0038 grams, meaning it could have weighed as little as 0.0014 grams, or 35 hundred-thousandths (0.00035) of a sugar packet.

Bill Moore, a 66-year-old man in Dallas, is serving a three-year prison sentence for 0.0202 grams of methamphetamines. In Fort Worth, Hector Ruiz was offered six years in prison for an empty bag that had heroin residue weighing 0.007 grams. In Granbury, Matthew Russell was charged with possession of methamphetamines for an amount so small that the laboratory result read only “trace.” The lab technician did not even assign a fraction of a gram to it.

A System that Coerces Guilty Pleas

In 2009 (the most recent year for which national data is available), more than 99 percent of people convicted of drug possession in the 75 largest US counties pled guilty. Our interviews and data analysis suggest that in many cases, high bail—particularly for low-income defendants—and the threat of long sentences render the right to a jury trial effectively meaningless.

Data we obtained from Florida and Alabama reveals that, at least in those two states, the majority of drug possession defendants were poor enough to qualify for court-appointed counsel. Yet in 2009, drug possession defendants in the 75 largest US counties had an average bail of $24,000 (for those detained, average bail was $39,900). For lower-income defendants, such high bail often means they must remain in jail until their case is over.

For defendants with little to no criminal history, or in relatively minor cases, prosecutors often offer probation, relatively short sentences, or “time served.” For those who cannot afford bail, this means a choice between fighting their case from jail or taking a conviction and walking out the door. In Galveston, Texas, Breanna Wheeler, a single mother, pled to probation and her first felony conviction against her attorney’s advice. They both said she had a strong case that could be won in pretrial motions, but her attorney had been waiting months for the police records, and Breanna needed to return home to her 9-year-old daughter. In New York City, Deon Charles told us he pled guilty because his daughter had just been born that day and he needed to see her.

For others, the risk of a substantially longer sentence at trial means they plead to avoid the “trial penalty.” In New Orleans, Jerry Bennett pled guilty to possession of half a gram of marijuana and a two-and-a-half-year prison sentence, because he faced 20 years if he lost at trial: “They spooked me out by saying, ‘You gotta take this or you’ll get that.’ I’m just worried about the time. Imagine me in here for 20 years. They got people that kill people. And they put you up here for half a gram of weed.”

For the minority of people we interviewed who exercised their right to trial, the sentences they received in Louisiana and Texas were shocking. In New Orleans, Corey Ladd was sentenced as a habitual offender to 17 years for possessing half an ounce of marijuana. His prior convictions were for possession of small amounts of LSD and hydrocodone, for which he got probation both times. In Granbury, Texas, after waiting 21 months in jail to take his case to trial, Matthew Russell was sentenced to 15 years for a trace amount of methamphetamines. According to him and his attorney, his priors were mostly out-of-state and related to his drug dependence.

Incarceration for Drug Possession

At year-end 2014, over 25,000 people were serving sentences in local jails and another 48,000 were serving sentences in state prisons for drug possession nationwide. The number admitted to jails and prisons at some point over the course of the year was significantly higher. As with arrests, there were sharp racial disparities. In 2002 (the most recent year for which national jail data is available), Black people were over 10 times more likely than white people to be in jail for drug possession. In 2014, Black people were nearly six times more likely than white people to be in prison for drug possession.

Our analysis of data from Florida, Texas, and New York, presented here for the first time, shows that the majority of people convicted of drug possession in these states are sentenced to some form of incarceration. Because each dataset is different, they show us different things. For example, our data suggests that in Florida, 75 percent of people convicted of felony drug possession between 2010 and 2015 had little to no prior criminal history. Yet 84 percent of people convicted of these charges were sentenced to prison or jail. In New York State, between 2010 and 2015, the majority of people convicted of drug possession were sentenced to some period of incarceration. At year-end 2015, one of sixteen people in custody in New York State was incarcerated for drug possession. Of those, 50 percent were Black and 28 percent Latino. In Texas, between 2012 and 2016, approximately one of eleven people in prison had drug possession as their most serious offense; two of every three people serving time for drug charges were there for drug possession; and 116 people had received life sentences for drug possession, at least seven of which were for an amount weighing between one and four grams.

For people we spoke to, the prospect of spending months or years in jail or prison was overwhelming. For most, the well-being of family members in their absence was also a source of constant concern, sometimes more vivid for them than the experience of jail or prison itself. Parents told us they worried about children growing up without them. Some described how they missed seeing their children but did not let them visit jail or prison because they were concerned the experience would be traumatizing. Others described the anguish of no-contact jail visits, where they could see and hear but not reach out and touch their young children’s hands. Some worried about partners and spouses, for whom their incarceration meant lost income and lost emotional and physical support.

In Covington, Louisiana, Tyler Marshall’s wife has a disability, and he told us his absence took a heavy toll. “My wife, I cook for her, clean for her, bathe her, clothe her…. Now everything is on her, from the rent to the bills, everything…. She’s behind [on rent] two months right now. She’s disabled and she’s doing it all by herself.” In New Orleans, Corey Ladd was incarcerated when his girlfriend was eight months pregnant. He saw his infant daughter Charlee for the first time in a courtroom and held her for the first time in the infamous Angola prison. She is four now and thinks she visits her father at work. “She asks when I’m going to get off work and come see her,” Corey told us. He is a skilled artist and draws Charlee pictures. In turn, Charlee brings him photos of her dance recitals and in the prison visitation hall shows him new dance steps she has learned. Corey, who is currently serving 17 years for marijuana possession, may never see her onstage.

Probation, Criminal Justice Debt, and Collateral Consequences

Even for those not sentenced to jail or prison, a conviction for drug possession can be devastating, due to onerous probation conditions, massive criminal justice debt, and a wide range of restrictions flowing from the conviction (known in the literature as “collateral consequences”).

Many defendants, particularly those with no prior convictions, are offered probation instead of incarceration. Although probation is a lesser penalty, interviewees in Florida, Louisiana, and Texas told us they felt “set up to fail” on probation, due to the enormous challenges involved in satisfying probation conditions (for example, frequent meetings at distant locations that make it impossible for probationers to hold down a job, but require that they earn money to pay for travel and fees). Some defense attorneys told us that probation conditions were so onerous and unrealistic that they would counsel clients to take a short jail or prison sentence instead. A number of interviewees said if they were offered probation again, they would choose incarceration; others said they knew probation would be too hard and so chose jail time.

At year-end 2014, the US Department of Justice reported that 570,767 people were on probation for drug law violations (the data does not distinguish between possession and sales), accounting for close to 15 percent of the entire state probation population around the country. In some states, drug possession is a major driver of probation. In Missouri, drug possession is by far the single largest category of felony offenses receiving probation, accounting for 9,500 people or roughly 21 percent of the statewide probation total. Simple possession is also the single largest driver in Florida, accounting for nearly 20,000 cases or 14 percent of the statewide probation total. In Georgia, possession offenses accounted for 17 percent of new probation starts in 2015 and roughly 16 percent of the standing probation population statewide at mid-year 2016.

In addition to probation fees (if they are offered probation), people convicted of drug possession are often saddled with crippling court-imposed fines, fees, costs, and assessments that they cannot afford to pay. These can include court costs, public defender application fees, and surcharges on incurred fines, among others. They often come on top of the price of bail (if defendants can afford it), income-earning opportunities lost due to incarceration, and the financial impact of a criminal record. For those who choose to hire an attorney, the costs of defending their case may have already left them in debt or struggling to make ends meet for months or even years to come.

A drug conviction also keeps many people from getting a job, renting a home, and accessing benefits and other programs they may need to support themselves and their families—and to enjoy full civil and social participation. Federal law allows states to lock people out of welfare assistance and public housing for years and sometimes even for life based on a drug conviction. People convicted of drug possession may no longer qualify for educational loans; they may be forced to rely on public transport because their driver’s license is automatically suspended; they may be banned from juries and the voting booth; and they may face deportation if they are not US citizens, no matter how many decades they have lived in the US or how many of their family members live in the country. In addition, they must bear the stigma associated with the labels of “felon” and “drug offender” the state has stamped on them, subjecting them to private discrimination in their daily interactions with landlords, employers, and peers.

A Call for Decriminalization

As we argue in this report, laws criminalizing drug use are inconsistent with respect for human autonomy and the right to privacy and contravene the human rights principle of proportionality in punishment. In practice, criminalizing drug use also violates the right to health of those who use drugs. The harms experienced by people who use drugs, and by their families and broader communities, as a result of the enforcement of these laws may constitute additional, separate human rights violations.

Criminalization has yielded few, if any, benefits. Criminalizing drugs is not an effective public safety policy. We are aware of no empirical evidence that low-level drug possession defendants would otherwise go on to commit violent crimes. And states have other tools at their disposal—for example, existing laws that criminalize driving under the influence or child endangerment—to address any harmful behaviors that may accompany drug use.

Criminalization is also a counterproductive public health strategy. Rates of drug use across drug types in the US have not decreased over the past decades, despite widespread criminalization. For people who struggle with drug dependence, criminalization often means cycling in and out of jail or prison, with little to no access to voluntary treatment. Criminalization undermines the right to health, as fear of law enforcement can drive people who use drugs underground, deterring them from accessing health services and emergency medicine and leading to illness and sometimes fatal overdose.

It is time to rethink the criminalization paradigm. Although the amount cannot be quantified, the enormous resources spent to identify, arrest, prosecute, sentence, incarcerate, and supervise people whose only offense has been possession of drugs is hardly money well spent, and it has caused far more harm than good. Some state and local officials we interviewed recognized the need to end the criminalization of drug use and to develop a more rights-respecting approach to drugs. Senior US officials have also emphasized the need to move away from approaches that punish people who use drugs.

Fortunately, there are alternatives to criminalization. Other countries—and even some US states with respect to marijuana—are experimenting with models of decriminalization that the US can examine to chart a path forward.

Ending criminalization of simple drug possession does not mean turning a blind eye to the misery that drug dependence can cause in the lives of those who use and of their families. On the contrary, it requires a more direct focus on effective measures to prevent problematic drug use, reduce the harms associated with it, and support those who struggle with dependence. Ultimately, the criminal law does not achieve these important ends, and causes additional harm and loss instead. It is time for the US to rethink its approach to drug use.

Key Recommendations

Human Rights Watch and the American Civil Liberties Union call on federal and state legislatures to end the criminalization of the personal use of drugs and the possession of drugs for personal use.

In the interim, we urge government officials at the local, state, and federal levels to adopt the recommendations listed below. These are all measures that can be taken within the existing legal framework to minimize the imposition of criminal punishment on people who use drugs, and to mitigate the harmful collateral consequences and social and economic discrimination experienced by those convicted of drug possession and by their families and communities. At the same time, officials should ensure that education on the risks and potential harms of drug use and affordable, evidence-based treatment for drug dependence are available outside of the criminal justice system.

Until full decriminalization is achieved, public officials should pursue the following:

• State legislatures should amend relevant laws so that a drug possession conviction is never a felony and cannot be used as a sentencing enhancement or be enhanced itself by prior convictions, and so that no adverse collateral consequences attach by law for convictions for drug possession.
• Legislatures should allocate funds to improve and expand harm reduction services and prohibit public and private discrimination in housing or employment on the basis of prior drug possession arrests or convictions.
• To the extent permitted by law and by limits on the appropriate exercise of discretion, police should decline to make arrests for drug possession and should not stop, frisk, or search a person simply to find drugs for personal use. Police departments should not measure officer or department performance based on stop or arrest numbers or quotas and should incentivize and reward officer actions that prioritize the health and safety of people who use drugs.
• To the extent permitted by law and by limits on the appropriate exercise of discretion, prosecutors should decline to prosecute drug possession cases, or at a minimum should seek the least serious charge supported by the facts or by law. Prosecutors should refrain from prosecuting trace or residue cases and should never threaten enhancements or higher charges to pressure drug possession defendants to plead guilty. They should not seek bail in amounts they suspect defendants will be unable to pay.
• To the extent permitted by law and by limits on the appropriate exercise of discretion, judges should sentence drug possession defendants to non-incarceration sentences. Judges should release drug possession defendants on their own recognizance whenever appropriate; if bail is required, it should be set at a level carefully tailored to the economic circumstances of individual defendants.
• To the extent permitted by law and by limits on the appropriate exercise of discretion, probation officers should not charge people on probation for drug offenses with technical violations for behavior that is a result of drug dependence. Where a legal reform has decreased the sentences for certain offenses but has not made the decreases retroactive, parole boards should consider the reform when determining parole eligibility.
• The US Congress should amend federal statutes so that no adverse collateral consequences attach by law to convictions for drug possession, including barriers to welfare assistance and subsidized housing. It should appropriate sufficient funds to support evidence-based, voluntary treatment options and harm reduction services in the community.
• The US Department of Justice should provide training to state law enforcement agencies clarifying that federal funding programs are not intended to and should not be used to encourage or incentivize high numbers of arrests for drug possession, and emphasizing that arrest numbers are not a valid measure of law enforcement performance.

Methodology

This report is the product of a joint initiative—the Aryeh Neier fellowship—between Human Rights Watch and the American Civil Liberties Union to strengthen respect for human rights in the United States.

The report is based on more than 365 in-person and telephone interviews, as well as data provided to Human Rights Watch in response to public information requests.

Between October 2015 and March 2016, we conducted interviews in Louisiana, Texas, Florida, and New York City with 149 people prosecuted for their drug use. Human Rights Watch and the American Civil Liberties Union identified individuals who had been subjected to prosecution in those jurisdictions through outreach to service providers, defense attorneys, and advocacy networks as well as through observation of courtroom proceedings.

In New York City, the majority of our interviews were conducted at courthouses or at the site of harm reduction and reentry programs. In Florida, Louisiana, and Texas, we met interviewees at detention facilities, drug courts, harm reduction and reentry programs, law offices, and restaurants in multiple counties.

In the three southern states, we conducted 64 interviews with people who were in custody—in local jails, state prisons, department of corrections work release or trustee facilities, and courthouse lock-ups across 13 jurisdictions. Within the jails and prisons, interviews took place in an attorney visit room to ensure confidentiality.

Most interviews were conducted individually and in private. Group interviews were conducted with three families and with participants in drug court programs in New Orleans (in drug court classrooms) and St. Tammany Parish (in a private room in the courthouse). All individuals interviewed about their experience provided informed consent, and no incentive or remuneration was offered to interviewees. For interviewees with pending charges, we interviewed them only with approval from their attorney and did not ask any questions about disputed facts or issues. In those cases, we explained to interviewees that we did not want them to tell us anything that could be used against them in their case.

To protect the privacy and security of these interviewees, a substantial number of whom remain in custody, we decided to use pseudonyms in all but two cases. In many cases, we also withheld certain other identifying information. Upon their urging and because of unique factors in their cases, we have not used pseudonyms for Corey Ladd and Byron Augustine in New Orleans and St. Tammany Parish, Louisiana, respectively.

In addition, we conducted 23 in-person interviews with current or former state government officials, including judges, prosecutors, law enforcement, and corrections officers. We also had phone interviews and/or correspondence with US Department of Justice officials and additional state prosecutors. We interviewed nine family members of people currently in custody, as well as 180 defense attorneys, service providers (including those working for harm reduction programs such as syringe exchanges, voluntary treatment programs, and court-mandated treatment programs), and local and national advocates.

Where attorneys introduced us to clients with open cases, we reviewed court documents wherever possible and corroborated information with the attorney. In other cases, we also reviewed case files provided by defendants or available to the public online. However, because of the sheer number of interviews we conducted, limited public access to case information in some jurisdictions, and respect for individuals’ privacy, we did not review case information or contact attorneys for all interviewees. We also could not seek the prosecutor’s perspective on specific cases because of confidentiality. We therefore present people’s stories mostly as they and their attorneys told them to us.[4]

Human Rights Watch submitted a series of data requests regarding arrests, prosecutions, case outcomes, and correctional population for drug offenses to a number of government bodies, including the Federal Bureau of Investigation (FBI) and various state court administrations, statistical analysis centers, sentencing commissions, departments of correction, clerks of court, and other relevant entities. We chose to make data requests based on which states had centralized systems and/or had statutes or criminal justice trends that were particularly concerning. Attempts to request data were made through email, facsimile, and/or phone to one or more entities in the following states: Alabama, California, Florida, Illinois, Indiana, Kentucky, Louisiana, Maryland, Mississippi, New York, Oklahoma, Texas, and Wisconsin. Among those, the FBI, Alabama Sentencing Commission, Florida Office of State Court Administrator, New York Division of Criminal Justice Services, New York Department of Corrections and Community Supervision, Texas Department of Criminal Justice, and Texas Office of Court Administration provided data to us.[5] Because of complications with the data file the FBI provided to us, we used the same set of data provided to and organized by the Inter-University Consortium for Political and Social Research.[6] We also analyzed data available online from the US Department of Justice’s Bureau of Justice Statistics and some state agencies.

As this report was going to press, the FBI released aggregated 2015 arrest data. We have used this 2015 data to update all nationwide arrest estimates for drug possession and other offenses in this report. However, for all state-by-state arrest and racial disparities analyses, we relied on 2014 data, as these analyses required disaggregated data as well as data from non-FBI sources and 2014 remained the most recent year for which such data was available.

Although the federal government continues to criminalize possession of drugs for personal use, in practice comparatively few federal prosecutions are for possession. This report therefore focuses on state criminalization, although we call for decriminalization at all levels of government.

A note on state selection:

We spent a month at the start of this project defining its scope and selecting states on which we would focus, informed by phone interviews with legal practitioners and state and national advocates, as well as extensive desk research. We chose to highlight Louisiana, Texas, Florida, and New York because of a combination of problematic laws and enforcement policies, availability of data and resources, and positive advocacy opportunities.

This report focuses on Louisiana because it has the highest per capita imprisonment rate in the country and because of its problematic application of the state habitual offender law to drug possession, resulting in extreme sentences for personal drug use. The report focuses on Texas because of extensive concerns around its pretrial detention and jail system, its statutory classification of felony possession by weight, and its relatively softer treatment of marijuana possession as compared to other drugs. We also emphasize the potential for substantial criminal justice reform in both states—which stakeholders and policymakers are already considering—and the opportunity for state officials at all levels to set an example for others around the country.

While this report focuses more heavily on Louisiana and Texas, we draw extensively from data and interviews in Florida and New York. We selected Florida because of its experience with prescription painkiller laws and the codification of drug possession over a certain weight as “trafficking.” We selected New York as an example of a state in which low-level (non-marijuana) drug possession is a misdemeanor and does not result in lengthy incarceration, and yet criminalization continues to be extremely disruptive and harmful to those who use drugs and to their broader communities. New York shows us that reclassification of drug possession from a felony to a misdemeanor, while a positive step, is insufficient to end the harms of criminalization, especially related to policing and arrests.

As described in the Background section, all states criminalize drug possession, and the majority make it a felony offense. As our data shows, most if not all states also arrest in high numbers for drug possession and do so with racial disparities. Thus, although we did not examine the various stages of the criminal process in more than these four states, we do know that the front end (the initial arrest) looks similar in many states. It is likely, as people move through the criminal justice system, that many of the problems that we documented in New York, Florida, Texas, and Louisiana are also experienced to varying degrees in other states. At the same time, there may be additional problems in other states that we have not documented. Wherever possible throughout the report, we draw on data and examples from other states and at the national level.

We are grateful to officials in Texas, Florida, and New York for their transparency in providing us remarkable amounts of data at no cost.[7] We regret our inability to obtain data from Louisiana. For 15 of Louisiana’s 41 judicial districts, plus the Orleans Criminal District Court, we made data requests to the clerk of court by phone, email, and/or facsimile. None was able to provide the requested information, and those who responded said they did not retain such data.

A note on terminology:

Although most states have a range of offenses that criminalize drug use, this report focuses on criminal drug possession and drug paraphernalia as the most common offenses employed to prosecute drug use (other offenses in some states include, for example, ingestion or purchase of a drug). Our position on decriminalization—and the harm wrought by enforcement of drug laws—extends more broadly to all offenses criminalizing drug use.

When we refer to “drug possession” in this report, we mean possession of drugs for personal use, as all state statutes we are aware of do. Like legal practitioners and others, we sometimes refer to it synonymously as “simple possession.” Possession of drugs for purposes other than personal use, such as for distribution, is typically noted as such in laws and conversation (for example, “possession with intent to distribute,” which we discuss in this report as well).

Not all drugs are criminalized: many substances are regulated by the US Food and Drug Administration (FDA), but are not considered “controlled substances” subject to criminalization. This report is about “illicit drugs” as they are understood in public discourse, the so-called “war on drugs,” and state and federal laws such as the Controlled Substances Act.[8] For simplicity, however, when we refer to “drugs” in this report, we mean illicit drugs.

Many people who use drugs told us the language of addiction was stigmatizing to them, whether or not they were dependent on drugs.[9] Because drug dependence is a less stigmatizing term, we used it where appropriate in our interviews and in this report to discuss the right to health implications of governments’ response to drug use and interviewees’ self-identified conditions. In so doing, we relied upon the definition of substance dependence as laid out in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (Fourth Edition) (also known as DSM-IV). Factors for a diagnosis of dependence under DSM-IV focus on individuals’ loss of ability to control their drug use.[10]

I. The Human Rights Case for Decriminalization

Human Rights Watch and the American Civil Liberties Union oppose the criminalization of personal use of drugs and possession of drugs for personal use. We recognize that governments have a legitimate interest in preventing societal harms caused by drugs and in criminalizing harmful or dangerous behavior, including where that behavior is linked to drug use. However, governments have other means beyond the criminal law to achieve those ends and need not pursue a criminalization approach, which violates basic human rights and, as this report documents, causes enormous harm to individuals, families, and communities.

On their face, laws criminalizing the simple possession or use of drugs constitute an unjustifiable infringement of individuals’ autonomy and right to privacy. The right to privacy is broadly recognized under international law, including in the International Covenant on Civil and Political Rights[11] and the American Convention on Human Rights.[12] Limitations on the right to privacy, and more broadly on an individual’s autonomy, are only justifiable if they serve to advance a legitimate purpose; if they are both proportional to and necessary to achieve that purpose; and if they are non-discriminatory. Criminalizing drug use fails this test.

Governments and policymakers have long argued that laws criminalizing drug use are necessary to protect public morals;[13] to deter problematic drug use and its sometimes corrosive effects on families, friends, and communities; to reduce criminal behavior associated with drugs;[14] and to protect drug users from harmful health consequences.[15]

While these are legitimate government concerns, criminalization of drug possession does not meet the other criteria. It is not proportional or necessary to achieve those government goals and is often implemented in discriminatory ways. Indeed, it has not even proven effective: more than four decades of criminalization have apparently had little impact on the demand for drugs or on rates of use in the United States.[16] Criminalization can also undermine the right to health of those who use.[17]

Instead, governments have many non-penal options to reduce harm to people who use drugs, including voluntary drug treatment, social support, and other harm reduction measures. Criminalization of drug use is also not necessary to protect third parties from harmful actions performed under the influence of drugs, and the notion that harmful or criminal conduct is an inevitable result of drug use is a fallacy.[18] Governments can and do criminalize negligent or dangerous behavior (such as driving under the influence or endangering a child through neglect) linked to drug use, without criminalizing drug use itself. This is precisely the approach US laws take with regard to alcohol consumption.

Those who favor criminalization of drug use often emphasize harms to children. While governments have important obligations to take appropriate measures—legislative, administrative, social, and educational—to protect children from the harmful effects of drug use,[19] imposing criminal penalties on children for using or possessing drugs is not the answer. States should not criminalize adult drug use on the grounds that it protects children from drugs.

Worldwide, the practical realities of governments’ efforts to enforce criminal prohibitions on drug use have greatly compounded the urgent need to end those prohibitions. Criminalization has often gone hand-in-hand with widespread human rights violations and adverse human rights impacts—while largely failing to prevent the possession or use of drugs.[20] And rather than protecting health, criminalization of drug use has in fact undermined it.[21]

These grim realities are on stark display in the United States. This report describes the staggering human rights toll of drug criminalization and enforcement in the US. Not only has the government’s “war on drugs” failed on its own terms, but it has needlessly ruined countless lives through the crushing direct and collateral impacts of criminal convictions, while also erecting barriers that stand between people struggling with drug dependence and the treatment they may want and need.

In the United States the inherent disproportionality of criminalizing drug use has been greatly amplified by abusive laws. Sentences imposed across the US for drug possession are often so excessive that they would amount to disproportionate punishment in violation of human rights law even if criminalization were not per se a human rights problem.[22] In many US states these excessive sentences take the form of lengthy periods of incarceration (especially when someone is sentenced as a “habitual offender” for habitual drug use), onerous probation conditions that many interviewees called a set-up for failure, and sometimes crippling fines and fees.[23]

This report also describes a range of other human rights violations and harms experienced by people who use drugs and by entire families and communities as a result of criminalization, in addition to the punishments imposed by law. For instance, enforcement of drug possession laws has a discriminatory racial impact at multiple stages of the criminal justice process, beginning with selective policing and arrests.[24] In addition, enforcement of drug possession laws unfairly burdens the poor at almost every step of the process, from police encounters, to pretrial detention, to criminal justice debt and collateral consequences including exclusion from public benefits, again raising questions about equal protection rights.[25]

Many of the problems described in this report are not unique to drug cases; rather, they reflect the broader human rights failings of the US criminal justice system. That fact serves only to underscore the practical impossibility of addressing these problems through incremental changes to the current criminalization paradigm. It also speaks to the urgency of removing drug users—people who have engaged in no behavior worthy of criminalization—from a system that is plagued with broader and deeply entrenched patterns of human rights abuse and discrimination.

Rather than criminalizing drug use, governments should invest in harm reduction services and public education programs that accurately convey the risks and potential harms of drug use, including the potential to cause drug dependence. Harm reduction is a way of preventing disease and promoting health that “meets people where they are” rather than making judgments about where they should be in terms of their personal health and lifestyle.[26] Harm reduction programs focus on limiting the risks and potential harms associated with drug use and on providing a gateway to drug treatment for those who seek it.

Implementing harm reduction practices widely is not just sound public health policy; it is a human rights imperative that requires strong federal and state leadership.[27] The federal government has taken some important steps to promote harm reduction,[28] as have some state and local entities.[29] 

However, the continued focus on criminalization of drug use—and the aggressiveness with which that is pursued by many public officials—runs counter to harm reduction. This report calls for a radical shift away from criminalization, towards health and social support services. Human rights principles require it.

II. Background

The “War on Drugs”

For four decades, federal and state measures to battle the use and sale of drugs in the US have emphasized arrest and incarceration rather than prevention and treatment. Between 1980 and 2015, arrests for drug offenses nearly tripled, rising from 580,900 arrests in 1980 to 1,488,707 in 2015.[30] Of those total arrests, the vast majority (78 percent in 1980 and 84 percent in 2015) have been for possession.[31]

Yet drug possession was not always criminalized. For much of the 19th century, opiates and cocaine were largely unregulated in the US. Regulations began to be passed towards the end of the 19th and at the start of the 20th century—a time when the US also banned alcohol. Early advocates for prohibitionist regimes relied on moralistic arguments against drug and alcohol use, along with concerns over health and crime. But many experts also point to the racist roots of early prohibitionist efforts, as certain drugs were associated in public discourse with particular marginalized races (for example, opium with Chinese immigrants).[32]

The US has also been a major proponent of international prohibition, and helped to push for the passage of the three major international drug control conventions beginning in the 1960s.[33] The purpose of the conventions was to combat drug abuse by limiting possession, use, and distribution of drugs exclusively to medical and scientific purposes and by implementing measures against drug trafficking through international cooperation.[34]

In 1971, President Richard Nixon announced that he was launching a “war on drugs” in the US, dramatically increasing resources devoted to enforcing prohibitions on drugs, using the criminal law. He proclaimed, “America’s public enemy number one in the United States is drug abuse. In order to fight and defeat this enemy, it is necessary to wage a new, all-out offensive.”[35] There are reasons to believe that the declaration of the “war on drugs” was more political in nature than a genuine response to a public health problem.[36]

Over the next decade, the “war on drugs” combined with a larger “tough on crime” policy approach, whose advocates believed harsh mandatory punishments were needed to restore law and order to the US. New laws increased the likelihood of a prison sentence even for low-level offenses, increased the length of prison sentences, and required prisoners to serve a greater proportion of their sentences before any possibility of review. These trends impacted drug offenses as well as other crimes.[37]

The new drug laws contributed to a dramatic rise in the prison population.[38] Between 1980 and 2003 the number of drug offenders in state prisons grew twelvefold.[39] By 2014, an estimated 208,000 men and women were serving time in state prisons for drug offenses, constituting almost 16 percent of all state prisoners.[40] Few of those entering prison because of drug offenses were kingpins or major traffickers.[41] A substantial number were convicted of no greater offense than personal drug use or possession. In 2014, nearly 23 percent of those in state prisons for drug offenses were incarcerated simply for drug possession.[42] Because prison sentences for drug possession are shorter than for sales, rates of admission are even more telling: in 2009 (the most recent year for which such data is available), about one third of those entering state prisons for drug offenses (for whom the offense was known) were convicted of simple drug possession.[43]

Drug Use in the United States

More than half of the US adult population report having used illicit drugs at some point in their lifetime, and one in three adults reports having used a drug other than marijuana.^[44]

The US Department of Health and Human Services’ Substance Abuse and Mental Health Services Administration (SAMHSA) conducts an annual survey of nearly 70,000 Americans over the age of 12 to produce the standard data used to research drug use. According to SAMHSA, 51.8 percent of adults reported lifetime use in 2014.^[45] Moreover, 16.6 percent of the adult population had used illicit drugs in the past year, while one in ten had used such drugs in the past month.^[46]

Lifetime rates of drug use are highest among white adults for all drugs in total, and for specific drugs such as marijuana, cocaine (including crack), methamphetamine, and non-medical use of prescription drugs. Latino and Asian adults use most drugs at substantially lower rates.^[47]

For more recent drug use, for example use in the past year, Black, white, and Latino adults use drugs other than marijuana at very similar rates. For marijuana, 16 percent of Black adults reported using in the past year compared to 14 percent of white adults and about 11 percent of Latino adults:

State Drug Possession Laws

All US states currently criminalize the possession of illicit drugs.[48] Different states have different statutory schemes, choosing between misdemeanors and felonies, making distinctions based on type and/or quantities of drugs, and sometimes treating second or subsequent offenses more harshly. State sentences range from a fine, probation, or under one year in jail for misdemeanors, up to a lengthy term in prison—for example, 10 or 20 years—for some felony possession offenses or, when someone is sentenced under some states’ habitual offender laws, potentially up to life in prison.

While some states have decriminalized possession of small amounts of marijuana, other states still make marijuana possession a misdemeanor or even a felony.[49] No state has decriminalized possession of drugs other than marijuana. As to “schedule I and II” drugs (which include heroin, cocaine, methamphetamines, and most commonly known illicit drugs), eight states and the District of Columbia treat possession of small amounts a misdemeanor, including New York.[50] In the remaining 42 states, possession of small amounts of most illicit drugs other than marijuana is either always or sometimes a felony offense.[51]

In addition to the “convicted felon” label, many felony possession laws provide for lengthy sentences. Of the states we visited, Florida, Louisiana, and Texas classify possession of most drugs other than marijuana as a felony, no matter the quantity, and provide for the following sentencing ranges.

In Florida, simple possession of most drugs carries up to five years in prison.[52] Florida drug trafficking offenses are based simply on quantity triggers: simple possession can be enough, without any evidence of trafficking other than the quantity.[53] In Louisiana, possession of most drugs other than heroin carries up to five years in prison, and heroin carries a statutory minimum of four years in prison, up to a possible ten years.[54] In Texas, possession of under a gram of substances containing commonly known drugs including cocaine, heroin, methamphetamine, PCP, oxycodone, MDMA, mescaline, and mushrooms (or between four ounces and five pounds of marijuana) carries six months to two years. One to four grams carries two to ten years.[55] Texas judges may order the sentence to be served in prison or may suspend the sentence and require a term of probation instead.

On top of these baseline ranges, some states allow prosecutors to enhance the sentence range for drug possession by applying habitual offender laws that treat defendants as more culpable—and therefore deserving of greater punishment—because they have prior convictions. For example, in Louisiana a person charged with drug possession who has one or two prior felony convictions faces up to 10 years in prison. With three prior felony convictions, a person charged with drug possession faces a mandatory minimum of 20 years to life in prison.[56] In Texas, a person with two prior felony convictions who is charged with possession of one to four grams of drugs faces 25 years to life.[57]

In 2009 (the most recent year for which such data is available), 50 percent of people arrested for felony possession offenses in the 75 largest US counties had at least one prior felony conviction, mostly for non-violent offenses.[58] Thus the scope of potential application of the habitual offender laws to drug possession cases is extensive for states that employ them.[59]

III. The Size of the Problem: Arrests for Drug Use Nationwide

Possession Arrests by the Numbers

Across the United States, police make more arrests for drug possession than for any other crime. Drug possession accounts for more than one of every nine arrests by state law enforcement agencies around the country.[60]

Although all states arrest a significant number of people for drug possession each year, police focus on it more or less heavily in different states. For example, in California, one of every six arrests in 2014 was for drug possession, while in Alaska the rate was one of every 27.[61]

In 2015, state law enforcement agencies made more than 1.25 million arrests for drug possession—and because not all agencies report data, the true number of arrests is higher.[62] Even this estimate reveals a massive problem: 1.25 million arrests translates into an arrest for drug possession every 25 seconds of each day.[63]

Some states arrest significantly more people for drug possession than other states:

While the bulk of drug possession arrests are in large states such as California, Texas, and New York, the list of hardest-hitting states looks different when mapped onto population size. Maryland, Nebraska, and Mississippi have the highest per capita drug possession arrest rates. For comparison, the rate of arrest for drug possession ranged from 700 per 100,000 people in Maryland to 77 per 100,000 in Vermont:

The differences in drug arrest rates at the state level are all the more striking because drug use rates are fairly consistent across the country. SAMHSA data shows that about 3 percent of US adults used an illicit drug other than marijuana in the past month.^[64] There is little variation at the state level, where past month use ranges from about 2 percent in Wyoming to a little over 4 percent in Colorado. For marijuana, there is slightly greater variation. About 8 percent of US adults used marijuana in the past month, but this ranged from about 5 percent in South Dakota to 15 percent in Colorado.^[65]

While many public officials told us drug law enforcement is meant to get dealers off the streets, the vast majority of people arrested for drug offenses are charged with nothing more than possessing a drug for their personal use.[66] For every person arrested for selling drugs in 2015, four were arrested for possessing or using drugs—and two of those four were for marijuana possession.[67]

Despite shifting public opinion on marijuana, about half of all drug possession arrests are for marijuana.[68] In 2015, there were over 574,640 arrests just for marijuana possession.[69] By comparison, there were 505,681 arrests for violent crimes (which the FBI defines as murder, non-negligent manslaughter, rape, robbery, and aggravated assault). This means that police made almost 14 percent more arrests for simple marijuana possession than for all violent crimes combined.[70]

Some police told us that they have to make an arrest if they see unlawful conduct, but this glosses over the key question of where and upon whom the police are focusing their attention to begin with. Differences in arrest rates for drug possession within a state reveal that individual police departments have substantial discretion in how they enforce the law, resulting in stark contrasts. For example, data provided to us by Texas shows that 53 percent of drug possession arrests in Harris County (in and around Houston) were for marijuana, compared with 39 percent in nearby Dallas County.[71] Yet a nearly identical proportion of both counties’ populations used drugs in the past year.^[72]

Additionally, certain jurisdictions within a state place a stronger focus on policing drug possession. In New York State, the counties with the highest drug possession arrest rates by a large margin were all in and around urban areas of New York City and Buffalo.[73] In Florida, the highest rates of arrest were spread around the state in rural Bradford County, urban Miami-Dade County, Monroe County (the Keys), rural Okeechobee County, and urban Pinellas County.[74] Within both states, drug use rates vary little between regions.^[75]

In Texas, the counties with the highest drug possession arrest rates are all small rural counties. Kenedy County, for example, has an adult population of 407 people, yet police there made 329 arrests for drug possession between 2010 and 2015.[76]

Racial Disparities  

Rather than stumbling upon unlawful conduct, when it comes to drug use and possession, police often aggressively search it out—and they do so selectively, targeting low-income neighborhoods and communities of color. As criminal justice practitioners, social science experts, and the US public now recognize all too well, racially disparate policing has had devastating consequences.[77]

Research has consistently shown that police target certain neighborhoods for drug law enforcement because drug use and drug sales occur on streets and in public view. Making arrests in these neighborhoods is therefore easier and less resource-intensive.

Comparably few of the people arrested in these areas are white.[78] Harrison Davis, a young Black man who was charged with possession of cocaine in Shreveport, Louisiana, recalled how the arresting officer had defended what Harrison considered racial profiling[79] during a preliminary examination: “‘I pulled him over because he was in a well-known drug area,’ the police officer says to the judge. But I’ve been living there for 27 years. It’s nothing but my family.”[80]

Black adults are more than two-and-a-half times as likely as white adults to be arrested for drug possession in the US.[81] In 2014, Black people accounted for just 14 percent of people who used drugs in the previous year, but close to a third of those arrested for drug possession.[82] In the 39 states for which we have sufficient police data, Black adults were more than four times as likely to be arrested for marijuana possession as white adults.^[83]

The disparities in absolute numbers or rates of arrests cannot be blamed on a few states or jurisdictions. While numerous studies have found racial disparities in marijuana arrests,[84] analyses of state- and local-level data provided to Human Rights Watch show consistent disparities across the country for all drugs, not just marijuana.

In every state for which we have sufficient police data, Black adults were arrested for drug possession at higher rates than white adults, and in many states the disparities were substantially higher than the national rate—over 6 to 1 in Montana, Iowa, and Vermont.^[85]

These figures likely underestimate the racial disparity nationally, because in three states with large Black populations—Mississippi, Louisiana, and Alabama—an insufficient proportion of law enforcement agencies reported data and thus we could not include them in our analysis.

Our in-depth analysis of Florida and New York data show that disparities are not isolated to a few municipalities or urban centers, though they are considerably starker in some localities than in others.

In Florida, 60 of 67 counties arrested Black people for drug possession at higher rates than white people.^[86] In Sarasota County, the ratio of Black to white defendants facing drug possession charges was nearly 8 to 1 when controlling for population size. Down the coast in comparably sized Collier County, the ratio, while still showing a disparity, was less than 3 to 1.

In New York, 60 of 62 counties arrested Black people for drug possession at higher rates than white people.[87] In Manhattan (New York County), there were 3,309 arrests per 100,000 Black people compared to 306 per 100,000 white people between 2010 and 2015. In other words, Black people in Manhattan were nearly 11 times more likely than white people to be arrested for drug possession.

Under international human rights law, prohibited racial discrimination occurs where there is an unjustifiable disparate impact on a racial or ethnic group, regardless of whether there is any intent to discriminate against that group.[88] Enforcement of drug possession laws in the US reveals stark racial disparities that cannot be justified by disparities in rates of use.

Incentives for Drug Arrests

Department cultures and performance metrics that incentivize high numbers of arrests may drive up the numbers of unnecessary drug arrests and unjustifiable searches in some jurisdictions.

In some cases, department culture may suggest to individual officers that the way to be successful and productive, and earn promotions, is to have high arrest numbers. In turn, a focus on arrest numbers may translate into an emphasis on drug arrests, because drug arrests are often easier to obtain than arrests for any other type of offense, especially if certain neighborhoods are targeted. As Randy Smith, former Slidell Chief of Police and current Sheriff for St. Tammany Parish, Louisiana, told us,

[Suppose I say,] “I want you to go out there and bring me in [more arrests]. Your numbers are down, last month you only had 10 arrests, you better pick that up or else I’m going put you in another unit.” You’re going to go out there and do what? You’re going [to go] out there to make drug arrests.[89]

Although the practice is outlawed in several states, some police departments operate a system of explicit or implicit arrest quotas.[90] Whether arrest numbers are formalized into quotas or understood as cultural expectations of a department, they may put some officers under immense pressure not only to make regular stops and arrests but to match or increase their previous numbers, in order to be seen as adequately “productive.”[91] In August 2015, twelve New York Police Department officers filed a class-action lawsuit against the department for requiring officers to meet monthly arrest and summons quotas, with one plaintiff noting that after being told he was “dragging down the district’s overall arrest rate,” he was given more undesirable job assignments.[92] In an Alabama town, an officer claimed in 2013 to have been fired after publicly criticizing the police department’s new ticket quota directives, which included making roughly 72,000 contacts (including arrests, tickets, warnings, and field interviews) per year in a town of 50,000 people.[93]

Such departmental pressure to meet arrest quotas can easily lead to more arbitrary stops and searches. In the aftermath of Michael Brown’s death in Ferguson, Missouri, the US Department of Justice’s Civil Rights Division recommended that the Ferguson Police Department change its stop and search policies in part by prohibiting “the use of ticketing and arrest quotas, whether formal or informal,” and focus instead on community protection.[94]

Randy Smith told us he opposes putting “expectations” or quotas on officers. “It kills you,” he explained:

I think sometimes you start building numbers and stats, and you kind of lose the ability to make better decisions on getting someone help, [when] getting a stat is putting them in jail. I’ve been there, and I’ve seen. You start having some serious problems.[95]

He said when officers understand that they are expected to make high arrest numbers, they often focus on drug possession:

So you’re going to stop 10 cars in maybe a not so good neighborhood. Out of 10 cars, you might get one out of those 10 that you get some dope or marijuana or a joint in the ash tray, or a Xanax in your purse…. If you dump [any] purse out, there’s probably some kind of anti-depression medicine in there, which is a felony [potentially]. And we know it, we’ve seen it, where those street crime guys will get out there and bring you to jail on a felony for a schedule four without a prescription, just because they got a stat. They’re tying up the jail. It’s ridiculous. That shit has got to stop….

You’ve got to look at the big picture. If you put quotas—which is a bad word—[officers] are going to start bum rapping people. The guy we got with the one pill, the one stop out of 10, what did I do with those other nine people that weren’t doing nothing? I stopped them. I harassed them. I asked them if they had guns in their car. I asked them if they had any illegal contraband. I’m asking them to search their car. What am I doing to the general citizen?[96]

Federal Funding, an Opportunity for Leadership In recent years, many advocates have expressed concern that high arrest numbers were incentivized by federal grant monies to state and local law enforcement through the Edward Byrne Memorial Justice Assistance Grant (JAG) program, administered by the Department of Justice’s Bureau of Justice Assistance (BJA).[97] Although funding is allocated based on a non-discretionary formula,[98] grant recipients must report back to BJA on how they use the funds, including—historically—reporting as a “performance measure” the number of individuals arrested.[99] Many groups were concerned that this sent a message to state and local law enforcement agencies that high arrests numbers meant more federal funds, and that it in turn incentivized drug arrests.[100] Recognizing that arrest numbers are not meaningful measures of law enforcement performance, BJA undertook a thorough revision of JAG performance measures, now called “accountability measures.”[101] As of fiscal year 2015, law enforcement agencies receiving JAG funds no longer must report on arrest numbers as a measure of performance or as accountability for funds received. BJA Director Denise O’Donnell told us, “Arrests can easily misrepresent what is really going on in criminal justice practice, and be misleading as to what we are really interested in seeing supported with JAG funds, namely evidence-based practices. So BJA has moved away from arrests as a metric, instead focusing on evidence-based practices, such as community collaboration, prevention, and problem-solving activities.”[102] This move is commendable. In the extensive training and technical assistance BJA provides to state law enforcement agencies, through JAG and other funding streams, BJA should reiterate that arrest numbers are not a sound measure of police performance. BJA should also encourage state agencies to pass the message along to local law enforcement agencies, which must still apply to the state agency for their share of the federal fund allocations. In many cases, that process continues to be discretionary and application-based and, in at least one recent call for applications, may still improperly emphasize drug arrests.[103]

IV. The Experience of Being Policed

They disrupt, disrupt, disrupt our lives…. From the time the cuffs are put on you, from the time you’re confronted, you feel subhuman. You’re treated like garbage, talked to unprofessionally. Just the arrest is aggressive to subdue you as a person, to break you as a man.[104]

—Cameron Barnes, arrested repeatedly for drug possession by New York City police from the 1980s until 2012

The sheer magnitude of drug possession arrests means that they are a defining feature of the way people experience police in the United States. For people we interviewed, drug laws shaped their interactions with and views of the police and contributed to a breakdown of trust.

Instead of experiencing police as protectors, arrestees in all four states we visited described experiences in which police officers intimidated and humiliated them. They described having their pockets searched, their cars ransacked, being subjected to drug-sniffing dogs, and being overwhelmed by several officers at once. This led some people to feel under attack and “out of a movie.”[105] Prosecutor Melba Pearson in the Miami-Dade State Attorney’s office said, “The way we treat citizens when we encounter them is wrong. If they expect to have their rights violated, of course there’s going to be hatred of the police…. You can’t take an invading-a-foreign-country mentality into the neighborhood.”[106]

Pretextual Stops and Searches without Consent

Many people we interviewed said police used pretextual reasons to stop and search them, told them to take things out of their pockets, otherwise threatened or intimidated them to obtain “consent” to search, and sometimes physically manhandled them. These stories are consistent with analyses by the American Civil Liberties Union and other groups that have extensively documented the failures of police in many jurisdictions to follow legal requirements for stops and searches.

US Supreme Court Justice Sonia Sotomayor has argued in dissent that the Court’s interpretation of US law “allow[s] an officer to stop you for whatever reason he wants—so long as he can point to a pretextual justification after the fact…. When we condone officers’ use of these devices without adequate cause, we give them reason to target pedestrians in an arbitrary manner.”[107]

These fears certainly accord with the realities facing many heavily policed communities.[108] Defendants and attorneys we interviewed described a litany of explanations offered by the police to justify stopping a person on the street or in a car, many of which appeared to them to be pretextual: failure to signal, driving in the left lane on an interstate, driving with a license plate improperly illuminated or with a window tint that is too dark, walking in the opposite direction of traffic, failing to cross the street at the crosswalk or a right angle, or walking in the street when a sidewalk is provided.[109] In many jurisdictions, these reasons are not sufficient in themselves to allow the officer to search the person or vehicle.[110] Yet in police reports we reviewed for several cases in Texas and Florida, officers stopped the defendant for a traffic violation, did not arrest for that violation, but conducted a search anyway. They cited as justification that they smelled marijuana, that consent to search was provided, or that the person voluntarily produced drugs from their pockets for the officer to seize.[111] These justifications often stand in stark contradiction to the accounts of the people who were searched.

The Smell of Marijuana The criminalization of marijuana in many states has given officers a powerful and widely-used pretext for searching people’s cars. Will Pryor, the prosecutor responsible for screening cases in Caddo Parish, Louisiana, told us that most drug possession cases he sees result from traffic stops where the officer allegedly smells marijuana.[112] Where the possession of marijuana is criminal—as it remains in most states—the odor of marijuana often gives law enforcement probable cause to search a car, typically anywhere that marijuana could be found (including car doors, consoles, glove compartments, trunks, and containers and bags inside the car). People within the car can then be charged for possessing anything illegal found as a result of the search, even when no marijuana is discovered. A number of interviewees in Florida, Louisiana, and Texas described arrests that followed this pattern, and we reviewed other police reports that cited the odor of marijuana. Miami prosecutor Melba Pearson told us, If I hear one more time, “I smelled marijuana,” and the subsequent search revealed no marijuana! … I work with police officers every day. A large majority are wonderful, fair people. However, there is a mentality in certain departments that tends to draw individuals who are action junkies, the “jump out boys.”… Some officers believe the ends justify the means [and don’t] consider it a problem because their job is to get drugs off the street without worrying about whether or not the case is prosecutable, or if there is a long term positive effect on the community.[113] Miami Judge Dennis Murphy told us, “Easily one out of four [police] stops, [I see] ‘defendant ran a stop sign, [officer] approached, there was a distinct odor of marijuana, so I searched and arrested for [other] drugs.’”[114]

Once stopped, some of the people we interviewed did not realize they had a right not to acquiesce to police searches, or felt they could not exercise it in the face of the officer’s authority.[115] A few allowed officers to search a vehicle because they did not think there were any drugs inside. In many other cases, interviewees told us, they never consented at all, and police simply did what they pleased.

We reviewed arrest reports in Texas and Florida where police accounts of how they obtained consent for a search were highly implausible. Police described defendants voluntarily emptying their pockets and revealing drugs, sometimes without being asked to do so; freely consenting to a search of their person when they had drugs on them; and admitting that they were about to use drugs before the officer found drugs on them.[116] Prosecutor Melba Pearson told us, “I have had [defendants] who sometimes do give up the drugs…. However, many times where we get a story [from police] about how consent was obtained or drugs were located pursuant to a search [it is problematic].”[117]

Other interviewees described police tactics that they said allowed officers to manipulate their way around the requirements of the law. In Brevard County, Florida, Isabel Evans told us that she was arrested in 2015 for the first time for hydromorphine possession and that she felt unable to disobey the officer:

He said my pocket was bulged. He said, “Reach in there and take it out.” I pulled it out, and he handcuffed me. The cop knew what he was doing. He couldn’t pull it out himself, so he took advantage of my ignorance of the law, of a first-timer like me. I’m not going to say you can’t do that. I’m scared.[118]

In Shreveport, Louisiana, Glenda Hughes was charged with felony possession of Klonopin in 2015. She told us, “If you say no to the search, that gives them suspicion…. If I had known more, maybe it would have come out differently. It’s not my fault though that I don’t know the legal system and the laws.”[119]

Feeling Targeted

All of the people arrested for drug possession we interviewed said they experienced fear, anger, or deep feelings of being unfairly targeted when police confronted, searched, and arrested them.

Many interviewees said that because they had been targeted or profiled in the past, they experienced a heightened sense of vulnerability to police intervention and insecurity in their person whenever they were in public. They described constantly feeling the need to look over their shoulder and exercise hyper-vigilance in all their actions, regardless of whether they had drugs on them.[120]

Leonard Lewis, a 28-year-old Black man in Houston, had been arrested and convicted of drug possession in the past. He said he felt that made him more likely to be stopped again and more likely to be arrested once police ran his name. He said the fact that he is big and Black makes him more vulnerable.[121] His mother told us, “[It] mess[es] with his mind. [Leonard] drives like a grandpa, like how an old man drives. He turns on his signals, he stops [before stop signs]. Even when he is pulling into the house, the boy turns on his signal. He says, ‘Mama, the police are never gonna have a reason to stop me.’”[122] In the Bronx, Angel Suarez explained to us:

I consider myself an addict and sometimes I worry when I’m using, because they search you for no reason. The cops know me; most of the time they see me they stop and search me. It makes it harder to live life when you’re walking down the street watching your back, but at the same time when you don’t have your drug it makes you sick.[123]

Drug enforcement practices do not only affect people who use or have used drugs. They broadly impact people who live in heavily policed neighborhoods, people who are homeless,[124] and people police claim to regard as “suspicious” for whatever reason—sometimes solely because of their race.[125]

Damian’s Story Damian Williams related his story to us as follows: In 2016, Damian and his girlfriend were living out of his car in Houston and trying to make ends meet. He said, “We were just working [all the time]. I was going to work during the day; she goes to work at nighttime. It was hectic, it was hard, but it was life.” They had just been approved to rent an apartment when Damian was pulled over for failure to signal. The officer said he smelled marijuana, and while Damian waited in handcuffs, he ransacked the car for 45 minutes, tearing through their bags, throwing their belongings on the ground. The officer finally emerged with half of a pill, and no marijuana. Damian said he did not know where the half-pill came from and thought it was a joke at first, but the officer told him it was a felony. Damian was taken to booking and charged with felony possession of Ecstasy. Damian appeared before a judge at 3 or 4 a.m. and his girlfriend bonded him out the next morning. She had rented a hotel room, because the car they used to sleep in had been impounded. He got out of jail before the buses ran, so he took a taxi straight to Walmart to buy clothes and soap because everything he owned was in his impounded car. Then he went to the hotel room to lie down for half an hour, before he had to catch the bus back to court. He said that all the money they lost on the impoundment, bond, and hotel meant they were no longer able to rent the apartment for which they had been approved. “It’s making me feel a little paranoid every time I see a police officer…. I didn’t think I was doing nothing then, and then I was put in jail and am paying all this money,” he said. On his girlfriend’s urging, Damian cut off his dreadlocks while out on bond and started dressing differently. He said appearance matters to the police.[126]

***

Darius’ Story Darius Mitchell, a Black man in his 30s, said he does not use drugs. From Darius and many other interviewees, we heard a similar story: Police stop a Black man walking or driving in a “bad” neighborhood, citing a minor and sometimes pretextual reason; they treat him as if he is a suspected drug dealer and insist on searching his person or his car without first obtaining consent; they find a small amount of drugs and arrest him for possession; and his life is put into upheaval by a prosecution. Darius recounted his arrest to us as follows: Late one night in Jefferson Parish, Louisiana, an officer pulled Darius over as he was leaving his child’s mother’s house. The officer said he had been speeding. When Darius replied that he certainly had not, the officer said he smelled marijuana. He asked whether he could search, and Darius said no. Another officer and canine came and searched his car anyway. They yelled, “Where are the pounds?” suggesting he was a marijuana dealer. The officers eventually found a pill bottle in the glove compartment of Darius’ car, with his child’s mother’s name on it. Darius said that he had driven her to the emergency room after an accident, and she had been prescribed hydrocodone, which she forgot in the car. The police kept him in their vehicle for an hour as they discussed what to do. When they eventually took him in, he was prosecuted for possession of hydrocodone, his first felony charge. The prosecutor filed charges and took the case all the way to a verdict, despite Darius’ explanation of why he had the pill bottle. Bail was set at $1,000, and Darius was able to bond out. He paid another $2,000 to hire a lawyer. Darius was ultimately acquitted at trial, but even months later he remained in financial debt from his legal fees, was behind in rent and utilities bills, and had lost his cable service, television, furniture, and other comforts. He told us: I was pulling money [from wherever I could]. I had three jobs at the time because I had to pay all these fees, because I still had my own apartment [to pay for and] had to take care of my kids. I was already living paycheck to paycheck. I was making it, but with fines and fees I was really pinching then. I was not paying this to pay that…. It was embarrassing for myself like that. [I had] court fees, lawyer fees, the light bill, rent.… They took the TV, the sofa set. I couldn’t pay it. [I was acquitted] but I still lost a lot. I still had to go through a lot of misery. Darius added, “On my record, they show that I didn’t get convicted, but it still shows that I got arrested.” Although Darius “walked free,” he still feels bound by his criminal justice debt and his arrest record.[127]

V. Aggressive Prosecutions

I loved to prosecute. I was the avenging angel. I was doing God’s work. I was getting the riff-raff off the street. Time proved me to be wrong. So I don’t consider those years to be a badge of honor. Guilt. A feeling that I did some things I shouldn’t have done…. I have been on both sides of the fence: the War on Drugs is lost. I’m really disgusted with the continuation of the prosecutions. I’m really disappointed.[128]

–Marty Stroud, former assistant district attorney and current defense attorney, Shreveport, Louisiana, February 2016

After police arrest a person, prosecutors have enormous discretion in deciding whether to prosecute, what charges to bring, and how the person will experience the criminal justice system. Because any given set of facts can often support different kinds of charges, if prosecutors decide to prosecute a drug use case, they typically have a range of charges to choose from—from misdemeanor drug paraphernalia to, in most states, felony possession to possession with intent to distribute.[129] The National District Attorneys Association advises, “In making a charging decision, the prosecutor should keep in mind the power he or she is exercising at that point in time. The prosecutor is making a decision that will have a profound effect on the lives of the person being charged, the person’s family … and the community as a whole.”[130]

Despite these opportunities for discretion, many prosecutors are far too willing to throw the book at people who use drugs, to charge them high and to seek the highest possible sentences.[131] While each prosecutor exercises discretion in his or her own cases, office culture often encourages prosecutors to adopt a default position of charging unreasonably high, instead of applying charges that speak appropriately to the facts of the case or declining to charge at all.[132] As discussed later in this report, in many cases this appears to be a deliberate tactic aimed at coercing defendants into pleading guilty to a lesser offense—an inherently abusive application of prosecutorial discretion.

Prosecutor Melba Pearson said she believed prosecutors have an obligation to use their discretion to address racial disparities in the cases police bring them:

It’s incumbent upon the state to report to the police that we’re having this disparity. To say, what can we do about this? ... It is a policing issue if you’re stopping a kid 15 times a month for a [car window] tint. [I can say,] “Don’t bring me that case. You’re clearly racially profiling.” Where the circumstances of a stop are such that there are issues of constitutionality, when you don’t prosecute, police will notice. When you tacitly approve it, police will continue.[133]

In some cases, prosecutors not only fail to confront this problem but compound it by exercising their own discretion in racially biased or at least racially disparate ways, for instance by charging Black defendants with more serious crimes or seeking sentencing enhancements more often when the defendant is Black.[134]

Different prosecutors’ offices applying the same state laws may prosecute drug possession differently, revealing another layer of potential arbitrariness in who is prosecuted for drug use.

In Florida, among the counties with at least 5,000 possession cases, there were striking disparities in the rate at which prosecutors declined to prosecute drug cases. For example, Polk County prosecutors declined to prosecute 57 percent of drug possession cases brought to them while Broward County prosecutors declined only 13 percent.[135]

Going after the Small Stuff

We interviewed over 100 people in Texas, Louisiana, Florida, and New York who were prosecuted for small quantities of drugs—in some cases, fractions of a gram—that were clearly for personal use. Particularly in Texas and Louisiana, prosecutors did more than simply pursue these cases—our interviewees reported that prosecutors often selected the highest charges available and went after people as hard as they could.

Possession Charges in Texas for Fractions of a Gram

Perhaps nothing better illustrates the harmful realities of aggressive prosecution and a charge-them-high philosophy than state jail felony cases in Texas.[136] Our data analysis suggests that in 2015, nearly 16,000 people were convicted and sentenced to incarceration for state jail drug possession offenses.[137] State jail felony drug possession is possession of less than one gram of substances containing common drugs such as cocaine, heroin, methamphetamine, PCP, oxycodone, MDMA, mescaline, and mushrooms.[138] This means they received a felony conviction and time behind bars for possessing less than a gram of drugs—the weight of less than one-fourth of a sugar packet. Depending on the type of drug, its strength and purity, and the tolerance of the user, one gram may be a handful of doses or even a dose or less of many drugs.[139]

Data provided to Human Rights Watch by the Texas Office of Court Administration, and presented here for the first time, shows case outcomes for all felony drug possession cases in Texas courts. Although the data does not differentiate between felony degrees, we can extrapolate based on state law and sentencing options.[140] Based on these extrapolations, the data suggests that in Texas in 2015, over 78 percent of people sentenced to incarceration for felony drug possession in Texas were convicted of a state jail felony. That means some 16,000 people were sentenced to time behind bars for possessing less than one gram of commonly used drugs.[141] Because this figure represents only those sentenced to incarceration, the number of people prosecuted and potentially convicted of state jail felony drug possession is likely thousands more, since Texas law requires that all persons convicted of first time state jail felony drug possession receive probation, and judges may impose probation in other cases as well.[142]

The majority of the 30 defendants we interviewed in Texas had substantially less than a gram in their possession when they were arrested: not 0.9 or 0.8 grams, but sometimes 0.2 or 0.02, or even a result from the lab reading “trace,” meaning that the amount was too small even to be measured. One defense attorney in Dallas told us a client was charged with drug possession in December 2015 for 0.0052 grams of cocaine.[143] To put it into perspective, that is equivalent to the weight of 13 ten-thousandths (.0013) of a sugar packet. The margin of error for the lab that tested it is 0.0038 grams, meaning it could have weighed as little as 0.0014 grams, or 35 hundred-thousandths (0.00035) of a sugar packet. These numbers are almost incomprehensibly small.

In Dallas County, the data suggests that nearly 90 percent of people sentenced to jail or prison for possession in 2015 were convicted of possessing less than a gram.[144] In fact, throughout the state, the overwhelming proportion of drug possession defendants were sentenced to incarceration for fractions of a gram:

Bill Moore, a 66-year-old man in Dallas, was prosecuted for third degree felony possession (normally one to four grams) for what the laboratory tested as 0.0202 grams of methamphetamines. The charge was enhanced to a third degree offense under the habitual offender law because of his prior possession charges, which he said were all under a gram as well. He spoke to us after he had pled to three years in prison for that 0.0202 grams: “It was really small; you wouldn’t even believe what I’m talking about. It’s unbelievable that they would even charge me with it.” He added, “It’s about five dollars’ worth of drugs…. Now think about how many thousands of dollars are wasted over five dollars of that stuff.”[145]

In Fort Worth, Hector Ruiz was prosecuted for an empty bag that had heroin residue weighing 0.007 grams. Apparently believing that he deserved aggressive charges, the prosecutor sought enhancements based on Hector’s prior state jail convictions, increasing the high end of his sentencing range from two to ten years. The prosecutor offered him six years in prison in exchange for a guilty plea.[146]

Leonard Lewis was charged with third degree felony possession (one to four grams) in Houston for two tobacco cigarettes dipped in PCP. Because he had two prior felonies, he faced 25 years to life in prison. He told us the actual weight of the liquid PCP on the cigarettes was microscopic. Although his attorney convinced the prosecutors to discount the filter, she said they still counted the weight of the rest of both cigarettes (tobacco and paper), resulting in a final weight of 1.4 grams combined.[147] Tobacco in an average cigarette weighs around 0.65 to 1 gram on its own,[148] meaning the trace amount of PCP on Leonard’s two cigarettes must have been nearly weightless. Nevertheless, Leonard ended up receiving four years in prison for it.[149]

In Dallas, Gary Baker was charged with 0.1076 grams of cocaine. Although he was arrested for outstanding traffic tickets, he and his attorney said the police searched his car for 45 minutes without finding anything. At his arraignment, the judge informed him he was also charged with possession of a controlled substance. Apparently, after Gary had been taken to booking, an officer reported finding what Gary remembered being described as “crumbs of crack cocaine” on the car console. Gary told us he did not know where the crumbs came from: “For the little amount of cocaine they found in my car, if I put it in your car, you wouldn’t even notice it. Some ‘crumbs’?”[150] The 0.1 grams allegedly discovered by the police is the equivalent in weight of 28 thousandths of a sugar packet.

In Granbury, Texas, Matthew Russell was charged with possession of methamphetamines for an amount so small that the laboratory result read only “trace.” The lab technician did not even assign a fraction of a gram to it. Matthew said the trace amount was recovered from inside his girlfriend’s house, while he was outside. Under the circumstances, he speculated—quite reasonably—that he was charged because of his history of drug use: “I’m not guilty of what they charged me with. I didn’t have any drugs in my possession. Am I guilty of being a drug user? Yes, I am. Did I use drugs the day before? Yes, I did. I admitted that. But I didn’t have any drugs on me. I shouldn’t be here.”[151]

The prosecutor sought enhancements because Matthew had prior felony convictions, mostly out-of-state and related to his drug dependence, Matthew told us. Because of his priors, Matthew faced 2 to 20 years for this trace amount. The prosecutor did not have to seek these enhancements. He also could have offered Matthew a gentler plea deal. Instead, he offered a 3-year discount off the statutory maximum in exchange for a guilty plea: 17 years for a trace case. Matthew refused and insisted on his right to trial. After 21 months of pretrial detention, Matthew finally went to trial in August 2016. A jury convicted him of possessing a trace amount of methamphetamines and sentenced him to 15 years in prison.[152]

Explaining why prosecutors pursue so many state jail possession cases, Galveston prosecutor Chris Henderson told us, “The idea behind it is that we want to prevent the bigger cases that may come down the line…. So we want to try to get to those people early. We want to prevent the murder in a drug deal gone wrong, theft, child endangerment, the larger cases…. If we decided not to prosecute small drug cases, we’d see situations like that more often.”[153] However, we are aware of no empirical evidence that low-level drug possession defendants would otherwise go on to commit violent crimes such as murder, and the theft and child endangerment cases can be addressed with the laws that criminalize them.[154] When we asked him whether he thought state jail prosecutions were working to stop crime, he added, “No, I don’t think so.”[155]

Paraphernalia Charged as Possession

In a handful of cases we investigated in Texas and Louisiana, defendants had drug paraphernalia, such as pipes, straws, syringes, or even empty baggies, in their possession when they were confronted by the police. But instead of simply charging them with misdemeanor drug paraphernalia—or letting them go—the police arrested them for drug possession because of the residue or trace amount of drugs left in or on the paraphernalia. And rather than questioning the utility of those arrests, prosecutors formally charged and prosecuted the defendants for drug possession.

Former District Attorney Paul Carmouche explained that the police typically make the initial decision to charge paraphernalia as possession, but that they have discretion not to arrest in those cases at all: “If it were good cops … they would say, ‘This is BS, we’re not going to do that.’ So, residue … I don’t think it ought to be charged. The problem for the DA’s office is, it’s going to come in as a possession of cocaine [because] the police are always going to charge the most serious under the facts of the case.”[156]

In such scenarios, the prosecutor still has the authority to reduce the charges, or to dismiss the case altogether. Yet in practice prosecutors often do not deviate in their charges from what is listed on the police report. For example, our data shows that in 93 percent of all drug use/possession cases that were filed in Florida, prosecutors did not deviate from the police arrest charge.[157]

In Miami, where drug possession carries up to five years in prison, Melba Pearson told us,

[As to] residue prosecutions, it’s ridiculous to potentially incarcerate for five years when you don’t even have the substance on you. The theory is you just smoked it, but we don’t know that’s necessarily true. When you don’t even have it in your possession, to charge it as a felony, the punishment doesn’t fit the crime. It’s a bad use of resources. Prosecutors are overburdened and resources are better directed to more serious crime. Enforcing residue cases is a philosophy reflective of “lock everyone up.’’[158]

The consequences of that philosophy play out in terms of human lives.

In St. Tammany Parish, Louisiana, District Defender John Lindner told us he was still seeing residue cases where needles were charged as heroin possession, which in the state carries a minimum of four years and up to ten years in prison.[159] For example, Amanda Price and her friend were arrested for a needle in St. Tammany Parish. After she had spent two months in pretrial detention, Amanda’s charge was reduced to a misdemeanor, but only after her friend (and co-defendant) said the needle was his and took the heroin possession conviction himself.[160]

Prosecutors have even pursued felony indictments and accepted guilty pleas for drug possession in the absence of any evidence. Jason Gaines said he was arrested in Granbury, Texas, for having one syringe cap in his pocket and three unused needles near him, one of which was missing a cap. He said after he had been handcuffed, the police asked if he used meth, and he said yes.[161] According to his attorney, the lab report showed that the syringes were never actually tested, and no meth was found on Jason’s person.[162]

On these facts, the prosecutor should not have charged Jason at all; if the needles were unused, there was no real evidence he had committed any crime, only that he might eventually inject drugs sometime in the future—and that he was preparing to do so safely with clean needles.[163] But even if the prosecutor insisted on charging Jason, he could have charged misdemeanor drug paraphernalia. Instead, the prosecutor pursued a felony charge and 89 days after Jason was arrested—one day short of the maximum 90 days Texas prosecutors have to obtain a felony indictment[164]—Jason was indicted for his first felony: possession of methamphetamines. He said:

I was thinking, I told them I was a meth user, which explains why on the indictment it came back methamphetamine. If I were to have told them heroin, it makes me think my indictment would have said heroin, because the needles were brand new; there is no way they could have tested for methamphetamine.[165]

Jason pled to four years’ probation on the same day the indictment was read to him in court, before he knew that the lab had never performed a drug test. Jason ultimately had his probation revoked for failure to report to his probation officer, and he pled to 20 months in a Texas state jail facility.[166]

Alyssa Burns was arrested in Houston for a meth pipe and charged with drug possession, her first felony. She said police performed a field test on the pipe, pouring a liquid inside that turned blue to show residue.

Trace cases need to be reevaluated. If you’re being charged with a .01 for a controlled substance, the fact that it turned blue, even if there’s nothing in it, that’s an empty baggie, that’s an empty pipe. There used to be something in it. They are ruining people’s lives over it.[167]

In Galveston, Breanna Wheeler’s lawyer said she waited 79 minutes while officers called a canine unit and searched the car in which she was a passenger. Breanna told us they found an empty plastic bag under her seat which they alleged belonged to her and had methamphetamine residue on it. After a period of pretrial detention because she could not afford bail, Breanna, a single mother, pled to her first felony conviction and time served so she could return home to her young daughter.[168]

In Houston, Nicole Bishop was charged with two counts of felony possession for heroin residue in an empty baggie and cocaine residue in a plastic straw. The charges meant she was separated from her three children, including her breastfeeding baby. She had been in pretrial detention for two months already when we interviewed her in March 2016.[169]

Miami Judge Dennis Murphy told us judges can take an active role to ensure defendants are not charged with possession for mere drug paraphernalia:

There’s so much space for judicial discretion. The police and SA’s [State Attorney’s] office will typically arrest for residue and charge for paraphernalia and possession. When a defendant is arraigned in my division and the lab report says merely residue, the defendant is invited to [move to] dismiss the possession [charge]…. So I dismiss the possession and let them plead to paraphernalia. Despite case law from the Third District [Court of Appeal] saying [residue] is still possession, I disagree.[170]

Medications Made into Felonies

A number of interviewees were charged with felony drug possession for medications for which they could not provide the prescription. Some interviewees said they were prescribed the medication in question but had allowed the prescription to lapse.[171] Others had a partner’s or friend’s medication in their possession when they were arrested. None of them were formally accused of dealing or committing fraud in obtaining the medications. And none of them felt they should be considered criminals simply for possessing pills many other people in the United States keep in their medicine cabinets.

Possession of certain prescription medications without evidence of the prescription is criminalized, sometimes at the felony level, in most states.[172] Although this may derive from a legislative intent to curb misuse and unlawful sale of prescription medicines, and is particularly relevant today with respect to prescription painkillers, its enforcement can be overbroad. Some of the cases we learned about suggest a lack of reasonableness and prosecutorial investigation that might have revealed mitigating facts, where prosecutors failed to exercise discretion to decline cases or to seek lesser charges and instead pursued cases aggressively.

Defendants we met were prosecuted with felony charges for possession of commonly prescribed medications including Adderall, Vyvanse, Xanax, and Klonopin.[173] Anita Robinson, 25, was charged with felony drug possession in Houston for seven Adderall pills. She said that, from the prosecutor’s perspective, “it doesn’t matter that it’s Adderall. [They treat it] like it could be meth or cocaine or whatever; it’s just classified with those same drugs.”[174]

Furthermore, in some Texas cases we examined in March 2016, prosecutors sought sentencing enhancements for these offenses or chose to charge according to the total weight of the pills, rather than the strength of the medication within them. For example, Adderall pills come in 5 to 30 mg strengths, but because the prosecutor considered the entire weight of the pills, George Morris’ possession of seven 20 mg strength Adderall pills translated into a third degree felony under Texas law.

George Morris’ story George Morris told us his story as follows: When he was 17 years old, George was convicted of burglary. George said he entered the open window of a friend who owed him money and took a PlayStation 2, and that he was prosecuted for burglary even though his friend’s mother tried to get the charges dropped. He served three years in prison. Ten years later, George was arrested in The Colony, Texas, when police found seven 20 mg Adderall pills in his car. George told us the pills were prescribed to his girlfriend. Because of his prior felony, he faced up to 20 years in prison for possession of the seven pills, despite the fact that the combined strength of the pills was a mere 0.14 grams. Prosecutors chose to enhance George’s charge with the PlayStation 2 conviction so that he faced up to 20 years for the pills. They ultimately offered him six years in prison in exchange for a guilty plea. Although six years is significantly less than a possible 20, it is a very long time from any other perspective and is a grossly disproportionate punishment for George’s “crime.” When he spoke to us, George was out on bond and had not decided whether to take the offer, but he said this case had already destroyed his life. He said it caused him to go into a depression for which he was hospitalized. His relationship with his girlfriend of 12 years was strained and eventually ended. His depression was so severe that he left his job and lost his house. He told us, “When I caught that charge, it took so much out of me because I was not doing anything to break the law, not doing anything to affect or hurt anyone around me…. Six years of your life … for seven Adderall pills.”[175] Before being prosecuted, George said he had a small grass-cutting and construction business; he woke up every day at 8 a.m. and worked all day. He told us everybody knew they could make a little money on the side if they sold drugs but that he refused to do so: I made a vow to God … I am not going to have these drugs; I am not going to sell no drugs; I am not going to do any drugs. I am going to focus on what I need to focus on, and that is cutting green grass and building fences. So that’s what I did…. But I gave up on [that] when I caught that case. I was just like, there’s no point in living.... I stay in my room and I sleep.[176]

We met many others like George. One of them was Amit Goel, a 19-year-old college sophomore in Dallas who had been prescribed Adderall since high school but said that he let his prescription run out the previous month. He was arrested with eight pills of Adderall and Vyvanse, another ADHD medication, and was facing a third degree felony for drug possession, which carries two to ten years in prison. He told us he got his prescription renewed the month after his arrest, but the prosecutor continued to pursue felony charges, on what would be Amit’s first felony conviction.[177]

Months after our visit to Texas, practitioners told us it had been discovered that possession of Adderall and Vyvanse was “mistakenly” no longer a felony offense, due to the “unintended consequences” of a Texas bill passed in 2015. According to the Texas District and County Attorneys Association, “The upshot of all this is that after September 1, 2015, most (all?) Adderall and Vyvanse crimes became misdemeanors, not felonies.”[178] The three Texas cases above were all being prosecuted as felonies in March.[179]

In Jefferson Parish, Louisiana, Darius Mitchell, profiled in section IV, was charged with his first felony for hydrocodone pills he said his son’s mother had left in his car after their visit to the Emergency Room.[180] In Shreveport, Glenda Hughes pled guilty to her first felony for possession of pills that she said were her husband’s. She told us she was arrested in her nightgown, without shoes, having run out the door with her purse after her husband beat her. She said that her husband was prescribed Klonopin and, because he would misuse them, she carried them for him to help him comply with the prescribed dosage. Glenda told us her husband said the pills were his and tried to explain things to the prosecutor.[181]

Charging Distribution in Possession Cases

In all four states we visited, some defendants were arrested in possession of drugs that they said were for their own use, but prosecutors chose to charge distribution or possession with intent to distribute (PWID)—without making any effort, as far as defendants or their lawyers could tell, to investigate whether the drugs were in fact for personal use.

Pursuing distribution charges for facts supporting simple possession is yet another example of prosecutors’ charging as aggressively as possible. A Caddo Parish defense attorney summed up what many had told us in all four states we visited: “They overbill the PWID charges. Anything approaching the weight [of distribution], anything with baggies. [Because] if the charge is PWID, it’s a higher bond.”[182] Because a higher bond means defendants are more likely to have to wait in jail until their case is disposed, and because PWID carries longer sentences, many interviewees felt the charge was meant to force their hands so they would accept a plea offer on simple possession, a topic explored in more depth in the next section.

In most states, PWID is usually proved based on circumstantial evidence such as the presence of individually packaged bags; scales, ledgers, or records of sales; and, more problematically, the presence of cash. In some states, drug quantity alone is presumptive evidence of possession with intent to distribute or of distribution.[183] In Florida, possession over certain thresholds is considered drug trafficking.[184] Although individually packaged bags, scales, ledgers, and sales records may be sound evidence of distribution in some cases,[185] cash or quantity alone is problematic.

As Judge Murphy told us in Miami, “More than half the time, those PWIDs [should] become possession charges.... You get people on payday [so they have cash]. There goes your rent check, your food check.”[186] Using the presence of cash as evidence of distribution is flawed, both as a matter of evidence and as a matter of fairness. It is clearly not illegal to carry cash; without more, a person’s possession of significant sums in cash is at best extremely dubious evidence of criminal activity of any kind. At worst, it is a flimsy pretext to bolster charges that lack real evidence to support them. In fact, poor people may be more likely to carry cash on them, not because they are drug dealers but because they are less likely to maintain a bank account. A large percentage of poor people are unbanked (having no bank account) or underbanked (relying more heavily on alternative financial providers than on their bank). Black and Latino households are significantly more likely to be unbanked or underbanked than white households.[187]

In a case in Shreveport, a defendant and his attorney reported that prosecutors used the fact that the defendant had $800 cash on him to increase the charges against him to include distribution of drugs, and that they did so even after he showed them he had just cashed a check from an insurance claim from a car accident.

David Ross said he was arrested in 2013 with a couple of grams of methamphetamines and eight to ten Percocet pills. Although there was no evidence of actual dealing, he was charged with two separate counts of distribution because he had drugs and money on him. In the courtroom, David told us, the prosecutor offered to lower the charges to possession if he took 10 years in prison—5 on each charge, run consecutively. David accepted on the spot, and the police kept his $800 through civil forfeiture. He said:

[My cases were] always possession, because I’ve had a drug problem since I was 16 or 17 years old…. They’re going to say you’re distributing when they know you’re not, so that when it comes to make a deal with you they will drop it down to simple possession and max you out. And you’re happy to take it, as you’d rather do 5 than 30.[188]

In addition to the problems of relying solely on cash as evidence, a number of interviewees argued it is a mistake to assume a larger quantity of drugs means the person is necessarily distributing. They said they buy a larger amount because it is cheaper and so that they do not need to return so frequently to their dealer, which can be dangerous and intimidating. Carla James was arrested in Dallas in 2010 for possession of seven grams of methamphetamines. Although she said the police wrote it up as drug possession, she was indicted on distribution charges because of the quantity. But she explained the meth was for personal use:

I bought a large quantity because I didn’t like going to the dope house…. You get more for your money when you get a higher amount…. It’s just like going to the grocery store…. You know you need a gallon of milk to make it to Friday. A gallon costs $2.50, and a half gallon costs $1.75. Why would you buy the half gallon, knowing it’s only going to last half of the week, when the full gallon is only [75 cents] more? Why buy a gram for $100 when you could buy 7 for $300?^[189]

Where judges call foul, some prosecutors amend the charge down to possession. In Caddo Parish, Louisiana, Judge Craig Marcotte said he had intervened in this way:

Now, have I seen cases charged with possession with intent when they should have been possession? Sure. You can say this looks like possession to me, not possession with intent, which I have done before. A lot of the times, they say, “Okay, judge” [and they downgrade the charge]. You can just tell … you know, having done this for so long, having seen thousands and thousands of these cases.[190]

VI. Pretrial Detention and the False Choice of a Plea Deal

Bail is very wrong here, very wrong. It’s always too high. That causes at least two problems that I see. Number one, it causes more people to have to stay in jail. [Number two,] when people are sitting in jail they’re much more prone to say, “Well, I’ll plead because I’ll get out.”… [But] they shouldn’t have been there in the first place. They should have had an unsecured promise to come to court. Because [pleading] is going to come to haunt you down the line.[191]

―Paul Carmouche, former district attorney for Caddo Parish, Louisiana, February 2016

Pretrial detention in drug cases contributes significantly to soaring jail and prison admissions and the standing incarcerated population in the United States. In 2014, approximately 64,000 people per day were detained pretrial for drug possession,[192] many of them in jail solely because they could not afford to post bail. As detailed in this section, this fact gives prosecutors significant leverage to coerce plea deals.

Pretrial detention, an inherently negative experience, also separates many defendants from their families and jobs and threatens lasting harm or disruption to their lives. To avoid all of this—or because long sentences otherwise hang over their head if they lose at trial—many defendants plead guilty simply to secure their release, in cases where they might otherwise want to go to trial.

Pretrial Detention

During the pretrial stages of a criminal case, judges can either release defendants on their own recognizance or set a money bond (also known as bail).[193] Release on own recognizance (ROR), also known as a personal recognizance (PR) bond, permits someone to be released until the next court date simply on a promise to appear; they must pay the specified bond amount if they fail to do so. For people we interviewed in Texas and Louisiana, a PR bond was not offered, even though it was statutorily available to the judge. Instead, bail was set at thousands of dollars.[194]

Defendants who cannot afford to pay the full bail amount often use a bondsman instead. Under this scheme, defendants pay a fee to a private bondsman company (sometimes 10 to 13 percent of the total bail amount), and the bondsman then takes on the obligation to ensure their reappearance. Defendants never receive the bondsman’s payment back, so the system has the effect of imposing financial costs on low-income defendants that people who possess the independent means to post bail do not incur. If defendants lack the financial resources to post bail, either through a bondsman or on their own, they remain incarcerated either until they come up with the money or until case disposition.

That effect is wide-reaching. In the two states for which we received court data containing attorney information, the majority of drug possession defendants were indigent—in other words, poor enough that they qualified for court-appointed counsel. In Florida, 64 percent of felony drug possession defendants relied on court-appointed rather than retained counsel. In Alabama, the rate was 70 percent, including marijuana as well as felony drug possession.[195] And these numbers are conservative, because indigent defendants who qualify for court-appointed counsel may still choose to sacrifice other resources and needs to pay for an attorney.[196]

High rates of pretrial detention reflect the reality that judges set bail so high that many defendants cannot afford it. In 2009, the most recent year for which the US Department of Justice has published data, 34 percent of possession defendants were detained pretrial in the 75 largest counties. Nearly all of those detained pretrial (91.4 percent) were held on bail, meaning that if they had had the means to pay, they would have been released.^[197] That same year, possession defendants in the 75 largest counties had an average bail of $24,000. Because the higher the bail, the more likely someone will not be able to afford it, the average bail for those detained was even higher. For those defendants, the average was $39,900.[198]

The money bail system is premised on the idea that defendants will pay to get out of jail and that, if the amount is high enough, they will return to court to get their money back. In theory, the principal goal is to ensure that defendants return: in other words, to prevent flight.[199] Yet data shows that drug possession defendants released pretrial do come back to court. Human Rights Watch has previously examined the myth that released defendants evade justice in New York.[200] Failure to appear rates are similarly low in other jurisdictions and for drug possession specifically. In the 75 largest US counties in 2009, 78 percent of people charged with possession and released pretrial made all their appearances in court; another 18 percent returned to court after their missed appearance(s). This means that in total 96 percent of all possession defendants ultimately came back to court.[201] Although the data does not indicate whether these defendants posted bail or were released on their own recognizance, it certainly counsels in favor of affordable bond that enables release.

When judges set bond, the amount should be individually tailored, reflecting an individualized determination not only of the flight risk posed by a particular defendant but also of that person’s ability to pay.[202] But in many jurisdictions we visited, interviewees said judges did not take their individual circumstances into account. In St. Tammany Parish, interviewees said their bonds were set even before they had met their appointed counsel, without a formal hearing. In a number of jurisdictions in Louisiana, bond is routinely set high, and it is up to the defense counsel to file a motion to reduce bond, which is then scheduled for a hearing sometime later. For low-income defendants unable to pay a high bond, this means they remain detained at least until the bond is reduced some weeks later.

In Texas and Louisiana, we interviewed approximately 30 defendants who could not afford the bondsman amount, let alone their full bail, and as a result were forced to remain in pretrial detention until their case was resolved. For some people, taking a case to trial may mean languishing in detention for over a year. Even for those ready to enter a plea deal, many had to spend months in detention before the prosecutor made an offer. In 2009, the median time between arrest and adjudication for possession defendants in the 75 largest counties was 65 days,[203] which would be spent in jail if a person could not afford bond. For people we interviewed, the wait was often much longer. Jason Gaines was charged with drug possession in Granbury, Texas, and said his bond was set at $7,500. He told us, “It was important to bond out because I didn’t want to be stuck in here forever. It takes at least three months to go to court for your first offer.”[204]

In our jail interviews in Texas and Louisiana, some pretrial detainees were waiting in jail while their attorneys investigated the case and filed pretrial motions, so that if they were going to consider pleading guilty, they could do so with a better sense of the strengths and weaknesses of their case. Other interviewees remained in pretrial detention because they wanted to go to trial or because they were hoping to get a better offer from the prosecutor. Some said they ultimately gave up, because fighting a case—either at trial or through pretrial motions such as for suppression of evidence—meant waiting too many months. Delays can be caused by overburdened courts and public defender systems, laboratory testing, and lack of communication between offices. When we met him, Matthew Russell had been waiting in pretrial detention for 16 months to take his “trace” possession case to trial. He said, “[If I didn’t have priors,] I’d be looking at 24 months.[205] I’ve done 16 [pretrial]…. I spent my 39th birthday here, my 40th birthday here in this jail … waiting to go to trial.”[206]

Bond Schedules In Texas jurisdictions we visited, bail was set according to bond schedules that provided presumptive amounts of bail according to the charge, sometimes with enhancements for criminal history, but regardless of ability to pay. As a one-size-fits-all model, bond schedules deprive defendants of individualized determinations. In litigation, the US has emphasized that it would be unconstitutional for detention to depend solely on a person’s ability to pay the schedule amount.[207] Yet the use of bond schedules is prevalent nationwide. A 2009 study of the 112 most populous counties found that 64 percent of those jurisdictions relied on them.[208] Presumptive bail amounts may also vary greatly between jurisdictions within a state, increasing the arbitrariness and inequality of the practice. For example, the ACLU of California reported in 2012 that there were 58 different bond schedules in use across the state. For simple drug possession, presumptive bail amounts were $5,000 in Fresno and Sacramento, $10,000 in Alameda and Los Angeles, and $25,000 in San Bernardino and Tulare.[209] Although, in theory, judges can depart from the schedule in individual cases, defense attorneys told us that as a matter of practice they rarely do.

High bonds also mean that some people we spoke with were detained pretrial even though they were only facing probation post-conviction. In Texas, a first offense state jail felony requires mandatory probation if the person is convicted. Yet many people are detained pretrial, sometimes even for months, before they are convicted and sentenced to probation. This means that someone ends up doing jail time in a case for which the legislature, judge, prosecutor, and defense attorney all agree any period of incarceration as a form of punishment is unwarranted.[210]

Waiting on Charges in Louisiana Defense attorneys in Louisiana told us defendants experienced long waits in detention before the prosecutor charged them through a formal bill of information or indictment. Under international human rights law, authorities cannot hold individuals for extended periods without charge; to do so amounts to arbitrary detention. The US Supreme Court has held that within 48 hours of arrest, a judge or magistrate must make a probable cause determination that the detainee has committed some crime.[211] But beyond the 48-hour rule, the prosecutor has still more time to decide which charges to bring—the Supreme Court has not yet ruled on how long this period may be, and jurisdictions vary widely in how they regulate it. Under Louisiana Code of Criminal Procedure article 701, the district attorney’s (DA) office has 60 days to “accept” the charges in the police report for a felony defendant detained pretrial—far in excess of the period many other US states allow.[212] That means for two months, a defendant who cannot afford bond, and who has not been formally charged—let alone convicted—of any crime, is forced to wait in jail without even knowing the charges against him or her. Judge Calvin Johnson told us, “You shouldn’t be arresting a person on January 1 and charging him in March. I mean that just shouldn’t be.”[213] In St. Tammany and Calcasieu Parishes, public defenders told us that prosecutors regularly would not file charges within the mandatory 60 days, and were routinely granted extensions of time by the court—typically another 30 days—to make their charging decision. Defendants and practitioners call this period of pretrial detention “doing DA time.”

Studies show that case outcomes for those fighting their charges from outside of jail are across the board more favorable than for those who are detained pretrial. According to the Bureau of Justice Statistics, in the 75 largest counties in 2009, fewer than 60 percent of defendants charged with drug offenses were convicted if they were released pretrial; however, close to 80 percent of those detained were convicted.[214] Analyzing 60,000 cases in Kentucky from 2009 and 2010, the Arnold Foundation found that defendants detained for the entire pretrial period were over four times more likely to receive a jail sentence and over three times more likely to receive a prison sentence than those released at some point pretrial. Sentences were nearly three times as long for defendants sentenced to jail and more than twice as long for those sentenced to prison than defendants released pretrial.[215]

One of the main reasons pretrial detention correlates with worse case outcomes is that detainees may be more likely to plead guilty when they are already in jail. In fact, our research suggests that prosecutors in some jurisdictions seek and judges set bail at an amount they expect defendants will not be able to pay in order to ensure they end up in pretrial detention, which makes them likely to accept a plea deal faster.[216] Joyce Briggs told us, “They hold you until you plead. That impacts people’s decision to plead. It impacts mine. I know I’m not going to get more than three years and I’ve already done a half a year, so—that’s how our minds work.”[217]

Conditioning loss of liberty on ability to pay infringes on the right to equality under the law and amounts to wealth discrimination.[218] Human rights law requires that pretrial restrictions be consistent with the right to liberty, the presumption of innocence, and the right to equality under the law. Pretrial detention imposed on criminal defendants accused of drug possession solely because they cannot afford bail is inconsistent with those rights. The stress and suffering interviewees charged with drug possession endured in detention simply because of their low-income status is unfair, unnecessary, and inconsistent with human rights.

Coerced Guilty Pleas

They forced me. I mean there’s no doubt in my mind they forced me.[219]

―David Ross, on pleading guilty to drug possession in Caddo Parish, Louisiana

Like all criminal defendants in the United States, people charged with drug possession have a right to trial by jury. In practice, however, jury trials are exceedingly rare, with the majority of defendants at the state and federal levels—across all categories of crime—resolving their cases through guilty pleas.[220] In 2009, between 99 and 100 percent of individuals convicted of drug possession in the 75 largest counties nationwide pled guilty.[221] In Texas, approximately 97 percent of all felony possession convictions between September 2010 and January 2016 were obtained by a guilty plea.[222] In Florida, more than nine out of every ten people facing drug possession charges in court (both misdemeanor and felony) between 2010 and 2015 pled guilty.^[223] Only 1 percent of all drug possession defendants in the state went to trial.^[224] In New York, such trials were almost nonexistent: 99.8 percent of the 143,986 adults convicted of drug possession between 2010 and 2015 accepted plea deals.^[225]

For scores of individuals interviewed for this report, the right to a jury trial was effectively meaningless. For them, the idea of a trial was more of a threat than a right, often because it meant further pretrial incarceration until trial and/or a “trial penalty” in the form of a substantially longer sentence if they exercised that right and lost.

Part of the problem is that the criminal justice system is overburdened, which means not only that prosecutors and judges are busy, but also that public defenders—who are often substantially underfunded—do not have sufficient time and resources to devote to each case,[226] disparately impacting poor defendants, who make up the majority of those charged with drug possession.

So long as dockets remain as crowded as they are today, there will be a powerful incentive for prosecutors to secure pleas in as many cases as possible—including by strong-arm means.[227] As explained by former chief prosecutor Paul Carmouche, “If every defendant said, ‘Hey, we’re going to trial,’ then the system stops. It would be jammed up. You got to plead.”[228]

According to one Texas prosecutor, prosecutors feel pressure to move cases quickly, and the pressure sometimes comes from judges:

It’s so unfair: Everybody in the criminal justice system knows that if a person can’t bond out he’s more likely to plead and you’ll have your case moved…. Judges will campaign on efficiency [and] in order to do that, to say “I have the smallest docket of all judges,” they force the prosecutors to plead more cases and force the defendants to plead to them, by issuing high bonds and refusing to lower them.… That external pressure feeds the lock-them-up system.[229]

A Crowded Court Docket—Full of Drug Possession Cases Some of the system “jam” is attributable to the large volume of drug possession cases prosecuted and disposed of by state courts. For example, from September 2010 through January 2016, Texas courts disposed of 893,439 drug cases (misdemeanors and felonies). Of all these drug cases, 78 percent (almost 700,000 cases) were for simple possession.[230] Among felony drug cases, 81 percent were for possession.[231] More than half of Texas’ drug cases during this period were misdemeanor cases (such as possession of marijuana or drug paraphernalia). Three quarters of all misdemeanor drug cases in the state were for marijuana possession only. In other words, there were approximately 371,000 marijuana possession cases prosecuted and disposed of in a little over five years.[232] In total, drug possession cases accounted for over 15 percent of all county and district court criminal dockets in Texas.[233] In Florida, drug possession was the most serious charge in about 14 percent of all cases filed by prosecutors in county or district court.[234]

There is nothing inherently wrong with plea deals as long as the plea process is not coercive.[235] Coercion arises when prosecutors leverage the threat of an egregiously long sentence to induce defendants to plead guilty to a lesser one, or when unreasonably high bail means that the only way to escape lengthy pretrial detention is to plead to probation, time served, or relatively short incarceration.

Before a judge accepts the defendant’s guilty plea, the judge must perform a “plea colloquy” with the defendant—a series of questions to defendants to ensure they are knowingly and voluntarily waiving their right to a jury trial.[236] Among those questions is some version of the following, which is constitutionally required in every state and federal system: “Has anyone forced or threatened you to plead guilty, or offered you any promises other than what’s contained in your plea agreement?” To a number of interviewees, this felt disingenuous. They knew they had to answer “no” to have their plea accepted, but said it was precisely a combination of coercion, threats, and promises that led them to plead.

Oscar Washington told us, “I remember everything of what the judge said [in] the plea [colloquy]. I felt like my back was against the wall, like the judge had me by the neck when he said, ‘Did anyone force you to take this plea?’ I couldn’t say yes.”[237] Interviewees in every jurisdiction we visited said they pled because the cost to their lives of waiting for trial in jail, or of risking the unreasonably steep penalties prosecutors threatened them with should they go to trial and lose, was too high.

Pressuring Defendants with “Exploding Offers” In many cases we examined in Louisiana and Texas, defendants were pressured into pleading guilty before they had seen the evidence against them or knew anything about the strength of the prosecutor’s case. In several jurisdictions, defense attorneys told us that prosecutors would sometimes make an “exploding offer”—a plea deal that was available only if the defendant took it immediately, sometimes the first time the person appeared in court. In other cases, the offer would be off the table if the defendant filed any pretrial motions, for example a motion to suppress. In Dallas, defense attorneys said plea offers were good only until grand jury indictment, which is the formal charging document. In Slidell, Louisiana, Joel Cunningham, a Navy veteran, said he pled to 15 years in prison at his 2012 arraignment for possession of marijuana and possession of one gram of cocaine with intent to distribute. At the time he pled, he said he had not seen the evidence against him; it was his first day in court, when the charges are read against a defendant. “The bill of information was filed. Eight days later I was arraigned. Two hours later I pled. The 15-year deal would come off the table if I didn’t plead immediately.” Now that Joel had seen the evidence, he told us he would have challenged it with pretrial motions.[238] In Caddo Parish, Louisiana, David Ross pled to 10 years for two possession charges. He said he had less than 10 minutes to accept the prosecutor’s offer: “They made me take 10 years that day, or they would have taken me to trial [on distribution] and I would have got a life sentence … because if you lose in Caddo Parish at trial, you’re getting a life sentence.”[239] These practices add to the pressures, threats, and promises that lead defendants to plead guilty when they might otherwise exercise their right to require the government to prove its case.

Pleading to Get Out of Jail

For drug possession defendants with little to no criminal history, or in relatively minor cases, prosecutors in each state we visited often made offers of probation or relatively short incarceration terms. A short sentence may effectively mean “time served,” since defendants usually get credit against their sentence for time spent in pretrial detention. Numerous defendants recounted being faced with a choice: fight the case and stay in jail, or take a conviction and walk out the door with their family.

A Texas prosecutor told us:

Dangling probation out there when a defendant can’t afford to bond out is something prosecutors do to plead cases out. Especially in weaker cases, for example when there are multiple people in the car, or identity is an issue; you might dangle probation out there just to get a conviction and if the person screws up on probation you can go back and get the punishment you wanted. That’s the reality, because the vast majority of people are not going to be successful on probation.[240]

Numerous defense attorneys told us that they had counseled their clients on the risks of taking a conviction, the onerous conditions of probation, and/or the strength of their case should they choose to fight it and not take a plea. Moreover, if they pled to a felony, it could serve as a predicate for enhancement of a subsequent charge down the road, or an even worse plea coercion. But taking a case to trial until verdict may take months, all of which defendants must spend waiting in jail if they cannot afford bond. Their choice is ultimately between the right to a trial and the promise of freedom. John Lindner, District Defender in St. Tammany Parish, summarized the problem:

Innocent people plead all the time. Not only here, but nationwide. It’s a matter of, if I stick you in jail, and you’ve been in jail for four or five months, and I come to you, “Hey, you can go home today, all you have to say is ‘yeah, I’m guilty,’ and you get to go home on probation.” You might jump on that.[241]

Interviewees explained why it was an obvious choice to plead guilty when they were in detention, although they would have fought their case if they had been on pretrial release:[242]

• In New York City, Deon Charles told us he pled guilty to possession with intent to distribute cocaine because his daughter had just been born that day: “I never sold drugs … it was bogus. [But] I didn’t have the funds to afford to fight [and] my daughter was born [that] day…. I pled because I wanted to see my daughter. And when I pled I got to go home. But I lost my job [as an EMT] because of it.”[243]
• Alyssa Burns, charged in Houston with residue in a meth pipe, said if she could bond out she would take the case to trial. “I would probably win at trial, but I talked to a girl yesterday and she had been sitting here for 11 months waiting for labs….[244] I can’t do it. This place is awful. So now I’m just gonna sign for a felony, flush my degree down the toilet and just see what happens.”[245]
• Breanna Wheeler, a single mother in Galveston, never showed up to chaperone her 9-year-old daughter’s school trip. She had been arrested the night before with residue on a plastic bag. Against her attorney’s advice, she pled to probation and her first felony conviction. They both said she had a strong case that could be won in pretrial motions, but her attorney had been waiting months for the police records and Breanna needed to return to her daughter. Afterwards, her attorney said, “She’s home with her kid, but she’s a felon.”[246]
• Also in Galveston, Jack Hoffman was detained pretrial for meth possession. He told us, “I don’t have money to bond out…. I don’t want to sign [for this felony], but if it means getting out there to my life and my family, I’ll do whatever it takes…. If I could bond out and still work and support my family, then I would fight it. But from in here? … It’s kind of a catch-22 situation, damned if you do, damned if you don’t.”[247]

Dhu Thompson, a former New Orleans and Caddo Parish prosecutor, warned that a decision to plead to probation, though it seems obvious at the time, may haunt the defendant down the road:

Say you have an individual charged with possession of cocaine. But the individual has now been in jail for 25 days and will plead to anything to get out. He comes to court, and the prosecutor offers him a felony plea. Nine out ten times they’re going to take it. [But now] they have that first felony on their record. They can’t vote. They can’t get a job. You know, family may ostracize them. That may create a problem where now you’re a repeat offender because this individual is desperate and does something in a desperate situation.[248]

Pleading to Avoid the Trial Penalty

Prosecutors wield so much power in the plea system that defendants often have no expectation or hope that they will receive a proportionate sentence if they lose at trial.[249] Many prosecutors use the threat of adding, or the promise of dropping, charges or sentencing enhancements to pressure defendants to give up their rights to trial.

Concerned about how a pled-to felony makes clients vulnerable under Louisiana’s harsh habitual offender law, public defender Barksdale Hortenstine, Jr. said, “I can’t tell you how many clients [I’ve had where] at the end of the representation, I’ve told them, ‘I will buy you the ticket, I will do anything I can, will you please leave this state? You cannot afford the risk involved in living here.’”[250]

The Threat of Enhancements

In cases we examined in Louisiana and Texas, prosecutors used habitual offender laws to enhance a defendant’s sentence range based on prior convictions and then offered to drop the enhancements in exchange for a guilty plea.[251] This tactic was used—even in cases where defendants had only drug possession priors or other non-violent, low-level convictions such as theft—either to scare them into a plea deal or, when they refused, to penalize them for going to trial.

Interviewees in Louisiana and Texas described how prosecutors used fear of enhancements to scare them into accepting plea offers that, in some cases, were horrible “deals” but that seemed reasonable to them nevertheless in light of the trial penalty they faced as habitual offenders. In the New Orleans Public Defender’s Office, Barksdale Hortenstine, Jr. explained, “The risk associated with [the habitual offender law] is so high that any rational lawyer has to advise vigorously to take deals that otherwise would seem absurd. So you end up pleading to five years in prison or eight years in prison [for possession]. Those numbers are commonly passed around.”[252]

When the Prosecutor, Not the Judge, Selects the Sentence In Louisiana, the habitual offender law provides for mandatory minimums,[253] meaning that the judge typically has no discretion to sentence below them.[254] Mandatory minimums take sentencing authority away from the judge and place it in the hands of prosecutors instead. Judges in Louisiana acknowledged that this meant the prosecutor wields a powerful tool—“a huge hammer,” according to Caddo Parish Judge Marcotte.[255]

Numerous government officials in Louisiana told us the habitual offender law is used mostly for drug dealers and not for those charged with simple possession charges, or that it is used for defendants with violent criminal histories or other serious felony priors and “then the straw that breaks the camel’s back is the possession.”[256] However, we documented cases in Louisiana and also in Texas where prosecutors used the habitual offender law for defendants whose only prior convictions were for drugs, such as Leroy Carter.

After suffering an injury while serving in the Navy, Leroy Carter was given a medical discharge and prescribed pain medications. He became dependent on the medications, and eventually he turned to other drugs. Now Leroy is serving 10 years on a plea deal for possession of marijuana and heroin. He pled guilty in 2012 in New Orleans because he was facing 20 years to life in prison if he lost at trial. His priors were all drug convictions: two marijuana possessions in the early 2000s, a heroin possession in 1999, and a marijuana distribution conviction in 1998.[257] When we spoke to him on the phone, we asked how much time he had to talk. He answered, “Ten years.”[258]

In Texas, defendants told us the habitual offender enhancements made them feel they had no choice but to plead:

• In Fort Worth, Hector Ruiz faced 25 to life for heroin possession because of his two prior felonies. “If I lose at trial, they start at 25…. It’s a scare tactic so you don’t go to trial. ‘You better not go to trial because if you lose, this is what happens! So take the five right now!’ This is not fair.”[259]
• In Granbury, Matthew Russell faced 20 years for a trace amount of methamphetamines. He told us, “I’m so stressed out that some days it almost makes me want to kill myself…. [20 years,] that scares me. And that is what they are made on. They are made on a man’s mental capacity, trying to pervert you by fear. This court system is a game of manipulation.”[260]
• Douglas Watson was arrested in Dallas for what field tested as 0.1 gram of heroin and 0.2 grams of meth found inside a pipe. He was not charged with the paraphernalia. Because he had two prior state jail felonies for possession, his sentencing range was enhanced to two to 10 years in prison. In a split second Douglas decided to plead, waiving laboratory testing and grand jury indictment, because the prosecutor offered him two years in prison.[261] Although it is shorter than many of the other sentences we documented, it was still time behind bars and two felony convictions for a minuscule amount of drugs whose weight Douglas did not even have time to challenge.
• In Dallas, Bill Moore, 66, pled to three years in prison because he faced two to 10 years on what the laboratory tested as 0.0202 grams of meth. He noted that after testing a speck that weighed two hundredths of a gram, the prosecution “wouldn’t have had anything left to show as evidence if [I’d] gone to trial. But what if they did, and they’d given me 10 years instead of three? I wouldn’t have any chance of getting out anytime soon that I know of. [I would have been] in my 70s. It’s hard for me to even say that.”[262]

Relatively few people test whether the prosecutor and judge will follow through with the trial penalty: nationwide, as described above, between 99 and 100 percent of drug possession defendants plead guilty. But Jennifer and Corey were among the 1 percent who insisted on their right to trial, even in the face of the trial penalty. When they lost, they were sentenced to two decades behind bars, of which Louisiana law required they serve every day.

Jennifer’s Story In 2016 in Covington, Louisiana, Jennifer Edwards was charged with heroin possession for a residue amount. The prosecutor made her a plea offer of seven years in prison. Because of her three drug possession priors (for Xanax, cocaine, and Ecstasy), she faced 20 years to life in prison if she refused the offer and lost at trial. With such a high trial penalty, her lawyer encouraged her to take the plea, but Jennifer insisted on her innocence. She told us, “I got about five minutes [to think about the offer]. That’s it…. I asked if I could please have the night to think about it, and they said, ‘Nope, the jury’s out there, you either taking this deal or you’re going to trial.’”[263] Jennifer took her case to trial, and the jury convicted her. When we spoke to her, she was waiting for the judge to choose a sentence between 20 years and life in prison:[264] I remember when they said I was guilty in the courtroom, the wind was knocked out of me. I went, “The rest of my life?” I still can’t believe it. All I could think about is that I could never do anything enjoyable in my life again. Never like be in love with someone and be alone with them. Just anything, you know…. I’ll never be able to use a cell phone ... take a shower in private, use the bathroom in private. Like all those things, I can never do those things…. I told [my attorney] during trial, no matter what happens, they can keep sticking me in here but they can never convince me what I’m doing is wrong. Jennifer told us that other detainees viewed her case as a cautionary tale: There’s 60 people in my cell, and only one of us has gone to trial. They are afraid to be in my situation. The [prosecutors] threaten everybody. I’ve seen people take 10 years flat, 15 years flat.[265] I don’t even understand it. Ten years flat? Might as well take a chance with the jury. [If everybody went to trial,] I think it would make the negotiating stronger on our end, but nobody does it. Because if [everyone] did that, they wouldn’t be able to bring everyone to trial…. Everybody has to stick together and say, “No,” and, “I want a speedy trial.”[266]

***

Corey’s Story In 2011, 25-year-old Corey Ladd was arrested in New Orleans with a plastic baggie containing a half-ounce of marijuana. Years before, Corey had pled guilty to two felony convictions, for hydrocodone possession at age 18 and LSD possession at age 21, and had been sentenced to probation for each. This time, the prosecutor sought serious prison time. Because of his priors, the prosecutor chose to charge Corey as a third-time offender, so that he faced a minimum of 13 years and 4 months, up to a maximum of 40 years in prison for marijuana possession. Corey told us he was offered 10 years in exchange for a guilty plea.[267] Despite the risk of such a high penalty, Corey refused the prosecutor’s offer and insisted on his right to trial. In 2013, the jury returned a guilty verdict. The judge imposed the penalty: For possessing a half-ounce of marijuana, she sentenced Corey to 20 years in prison without parole. Corey appealed his sentence to the state appeals court, which found in 2014 that 20 years was not “excessive” for marijuana possession for a third-time offender.[268] Corey then appealed to the Louisiana Supreme Court, which found in 2015 that the trial judge had failed to state her reasons and sent the case back to her for resentencing. Two of the four Supreme Court judges expressed concern that “this sentence on its face seems very harsh.”[269] When the trial judge resentenced Corey to 17 years without parole, he appealed yet again to the state appeals court. This time, in April 2016, it was the state appeals court that reversed the 17-year sentence and sent Corey’s case back to the trial judge for resentencing. The appeals court wrote: The laws nationwide are changing, as is public perception. As mentioned above, this defendant would conceivably be in his forties before he is released. Although the defendant’s seventeen-year sentence is within the range of permissible sentences, on its face, the sheer harshness of the sentence shocks the conscience.[270] In spite of this history, the prosecutor held his ground. He objected to the appeals court’s reversal and filed an appeal of his own to the Louisiana Supreme Court. As of this writing, Corey is waiting for that decision. He has been in prison for 4 years and has never held his 4-year-old daughter outside of prison walls.

Why Habitual Offender Laws Do Not Make Sense for Drug Possession

In the context of drug possession, the effect of habitual offender laws is to punish habitual drug use. Although any criminal sanction for drug use is inappropriate, habitual offender sentencing delivers especially disproportionate punishment. If a person is facing a subsequent conviction for drug possession, it is simply an indication that the criminal justice system has failed to stop drug use, not that the person deserves a longer sentence. Moreover, it risks punishing some people for “recidivism” who may in fact be drug dependent, a health rather than a criminal justice issue.

Several Louisiana officials, recognizing this fact, argued that habitual offender enhancements should not be applied to drug possession. As Judge Calvin Johnson, formerly on the bench in New Orleans, told us, “The rationale for it again is that individuals who commit multiple offenses are bad, bad people and they should be convicted accordingly…. My knee jerk reaction is no.… The fact that a drug user has been arrested for drugs multiple times means only that that person has had drugs multiple times. It doesn’t impact you, or me, or anyone in this room.” He told us he “would take [drug possession] out” of the criminal justice system entirely, “but a step towards that would be to move drug possessors out of the multi-bill statute.”^[271]

Reviewing Corey Ladd’s possession case, the Louisiana Court of Appeals for the Fourth Circuit delivered a striking condemnation of the prosecutor’s decision to use the habitual offender law:

[The habitual offender law] dramatically limits judges’ ability to consider the human element and the life-time impact of harsh sentences on both defendants and their families, not to mention the State’s economic interest. Sentences should be sufficient but not greater than necessary to meet the goals and expectations of sentencing. Is it deterrence? Is it punitive? Far too much authority has been usurped from judges under the pretext of appearing “tough” on crime and allowing the habitual offender statute to become what now appears to be an archaic draconian measure. Our state, Louisiana, has some of the harshest sentencing statutes in these United States. Yet, this state also has one of the highest rates of incarceration, crime rate and recidivism. It would appear that the purpose of the habitual offender statutes to deter crime is not working and the State’s finances are being drained by the excessive incarcerations, particularly those for non-violent crimes.^[272]

For all these reasons, sentences for drug possession should not be subject to enhancement under habitual offender laws, regardless of the prior offense type, and past convictions for drug possession should not be used as predicates for enhancements of sentences for any other offense.

The Threat of Higher Charges

Instead of the threat of enhancements at trial, some defendants face higher charges if they insist on their trial rights, and are offered a plea to the lesser charge of possession if they give up those rights. We heard frequently that prosecutors would charge possession with intent (or distribution) for what otherwise could be considered simple possession and that those cases typically ended in a plea to simple possession. This raises concerns that prosecutors may be overcharging defendants in order to coerce pleas.

A significant number of distribution charges are disposed of with pleas to simple possession. For example, in New York, over half of all possession with intent to distribute arrests and a third of sales arrests were disposed of with guilty pleas to possession charges.[273] In some of these cases, people actually guilty of selling may be getting good deals. However, we documented cases where the more serious initial charges appear instead to represent an attempt at coercing defendants to plead guilty to the more appropriate charge.

Jerry’s Story Jerry Bennett told us he pled guilty to two-and-a-half years in prison for half a gram of marijuana because the prosecutor threatened to charge him with distribution. Jerry was arrested in New Orleans in March 2015 and charged with possession of half a gram of marijuana that was found in the backseat of the truck in which he was a passenger. Because he had prior marijuana possession convictions, it was a felony charge. He sat in jail for over eight months while his trial date was set and reset. In the intervening time, his attorney won a motion to suppress evidence. Then the prosecutor made Jerry a plea offer of two-and-a-half years, which Jerry did not want. His attorney recalls the prosecutor’s words: “If he doesn’t take this today, we’re going to take that offer off the table. There will be no offer. We’ll just go to trial, and we’re going to change the charge from possession to distribution.”[274] Jerry told us, “Half a gram! There ain’t no way you could distribute half a gram.” He chose not to take the offer and instead go to trial. When Jerry returned to court at the end of January 2016—almost 11 months after his arrest, during all of which he had been in jail—the prosecutor had a new tactic for getting him to take the two-and-a-half years. He would charge Jerry with both possession and distribution (for the same half gram of marijuana). Jerry would be sure to lose on one of them if he went to trial and, when he did, the minimum he would face would be 20 years. The prosecutor offered Jerry the two-and-a-half years instead. Jerry had been detained pretrial in a jail that was a four-hour drive from his lawyer, his girlfriend, and his 3-year-old daughter. He had not had time to speak to them, but the prosecutor gave him only 10 minutes to decide. His girlfriend had not made it to court in time, but she sent text messages to him via his attorney, begging him to think of their daughter: “Man, just take it, because if they mess with you, you’re going to see none of her life.”[275] As Jerry’s attorney recalled, “We had a very frank conversation about the fact that, as much as he on principle didn’t want to take this, and also didn’t want to have to do another year and a half in jail, and he had promised his girlfriend that he was not going to miss the next birthday of his daughter … it was like, you can miss one more birthday, or you can potentially miss her entire childhood.”[276] Jerry took the two-and-a-half years for marijuana possession, and the prosecutor dropped the distribution charge. When we talked to Jerry in jail the next day, he explained, “They spooked me out by saying, ‘You gotta take this or you’ll get that.’ I’m just worried about the time. Imagine me in here for 20 years. They got people that kill people. And they put you up here for half a gram of weed.”[277]

Pleading When Innocent

Numerous interviewees in each state we visited said they had pled guilty even though they were innocent. Many said they did not feel they had any other real choice. Defendants, defense attorneys, judges, and prosecutors in different jurisdictions used the language of gambling: would the defendant “roll the dice” and go to trial? Most defendants said no, because the odds were against them and the stakes were too high.

Tyler’s Plea Tyler Marshall was arrested in Louisiana, charged with possession of marijuana, convicted, and sentenced to 10 years in prison. The transcript of his plea colloquy plainly indicates that he either did not understand or did not want to plead guilty: By the court: Okay, listen to my question again sir. Do you wish to waive your constitutional rights and plead guilty because you have in fact committed this crime? [Defendant]: But I didn’t do it. [Defense counsel]: You are pleading guilty. [Defendant]: I am pleading guilty. By the court: Okay. And in pleading guilty today you are waiving your constitutional rights. Is that correct? [Defendant]: Yes ma’am. By the court: And you are pleading guilty because you committed this crime. [Defendant]: No ma’am. [Defense counsel]: Say yes, please. [Defendant]: Oh, I have to? Yeah. But I’d be lying though.[278]

In Texas, where defense attorneys said laboratory scandals and faulty roadside drug tests had raised concerns, Harris County began testing drugs in possession cases that had already been closed. Since 2010, there have been at least 73 exonerations in Harris County for drug possession or sale where the defendant pled guilty for something that turned out not to be a crime at all. In 2015 alone, there were 42.[279]

Of the 42 exonerees in 2015, only six were white.[280] Most or all had been adjudged indigent, meaning they could not afford an attorney and had either a public defender or another attorney appointed for them. One of those attorneys, Natalie Schultz, said a significant number of them were homeless.[281] When the laboratory finally tested their drugs, it found only legal substances or nothing at all.

For example, in July 2014, police arrested Isaac Dixon, 26, for possession of a substance that field tested positive for Ecstasy. Two days later, Isaac pled guilty to felony drug possession and was sentenced to 90 days in the Harris County Jail. More than 14 months later, the substance was tested by a laboratory, and the field test was proved faulty. No drugs were found—only antihistamine and caffeine.[282]

Like Isaac’s conviction for drug possession, dozens more in Harris County in 2015 were ultimately vacated and the charges dismissed, but only because authorities took the time to have the drugs tested, after the case dispositions. The exonerations required laboratory testing, defense and prosecution filings for habeas corpus relief, trial court recommendations, and eventual dismissal by the Texas Court of Criminal Appeals.[283] In the meantime, defendants had to endure pretrial detention, probation, sometimes a jail sentence, and the prospect of a felony conviction for action that was lawful.

As the exonerations in Harris County demonstrate, people plead guilty to drug possession even when they are innocent, because the system makes them feel they have no choice. These cases also show that field tests often produce false positives and yet are sometimes the only evidence of drug possession.[284] Fortunately for the defendants, Harris County invested the time and resources to test drugs after conviction. Harris County Public Defender Alex Bunin told us that if other jurisdictions undertook the same effort, he expected we would see that around the country indigent defendants plead guilty to drug possession when they are innocent.[285]

Reducing Charges—Discretionarily, for White Defendants Data from New York State suggests that prosecutors’ discretion to reduce charges through plea deals is exercised differently in different jurisdictions, and often with racially disparate impact. Between 2010 and 2015, 38 percent of drug possession arrests in New York State were disposed of at a reduced level.[286] There were striking disparities between jurisdictions across the state and, within New York City, even among boroughs. In the Bronx, 38 percent of arrests ended in convictions on reduced charges while in Manhattan (New York County) the figure was 25 percent. The majority of downgraded arrests involved misdemeanor charges disposed of as violations. The data also shows racial disparities between those who benefit from reductions in or dismissal of charges and those who do not. In New York, for non-marijuana A misdemeanors, the second most common possession arrest charge after marijuana B misdemeanors,[287] white defendants received reduced or dismissed charges at greater rates than Black defendants in all New York City counties, and in the aggregate of all other New York State counties combined.

VII. Sentencing by the Numbers

If we go back to why we punish—deterrence, protection of the community—long term, jail isn’t doing those things. But no one is thinking long term about it. [There’s a saying,] “Insanity is doing the same thing over and over and expecting a different result.” … The general community doesn’t understand it’s not working. They don’t know it’s the same 90 people we keep picking up and putting in the system.^[288]

—A judge in Central Florida, on the mismatch between criminal law and drug use, December 2015

At year-end 2014, more than 25,000 people were serving sentences in jails and another 48,000 in state prisons for drug possession.^[289] The number being admitted to jails and prisons to serve sentences at some point over the course of the year was significantly higher.^[290]

In many cases, particularly for people convicted of their first offense, sentences for drug possession can be comparatively short. However, both our interviews and our analysis of sentencing data reveal that some jurisdictions impose very long sentences—even life sentences in Texas—for drug possession. Miami Judge Dennis Murphy told us that some judges impose disproportionate sentences because “they want to be seen as tough, but studies show that long sentences result in nothing but costliness.”^[291]

Racial Disparities in Incarceration In examining who is incarcerated for drug possession, we found that stark racial disparities mark both jail and prison populations. Of the total jail population nationwide (convicted and unconvicted) in 2002 (the most recent year for which such jail data is available), 31,662 Black inmates, 19,203 white inmates, and 14,206 Latino inmates were jailed for drug possession.[292] Given that Black people made up 13 percent and white people 82 percent of the US population in 2002, these numbers mean that Black people were more than 10 times as likely as white people to be jailed for drug possession, even though the drug use rate for each group is roughly equivalent.[293] Of the total state prison population at year-end 2014, 18,800 Black inmates, 17,700 white inmates, and 11,400 Latino inmates were imprisoned for drug possession.[294] These numbers mean that Black people were nearly six times more likely than white people to be in prison for drug possession.[295] Because the US Census Bureau does not include race data for Latinos, we could not assess disparities in their incarceration.

Human Rights Watch analyzed sentencing data for people convicted of drug possession in Florida, New York, and Texas. This section outlines our findings.

In Florida between 2010 and 2015, 84 percent of defendants convicted of felony drug possession were sentenced to prison or jail (about a quarter to state prison and three-quarters to county jail). For misdemeanors, 68 percent of those convicted were sentenced to confinement, almost all going to county jail. [296]

Whether or not a person is sentenced to prison in Florida depends not only on the conviction offense but also on past criminal record, based on a scoring or points system. A person whose first conviction is for drug possession would not “score out” to prison time under this system, though he or she may be sentenced to county jail.^[297] Roughly three of every four felony drug possession defendants were sentenced to terms in county jail or were not sentenced to incarceration at all, suggesting they had little or no significant prior criminal history.

Yet even individuals sentenced to county jail for drug possession spend substantial time behind bars, especially those convicted of felonies:[298]

In Texas between September 2010 and January 2016, more than three-quarters of felony drug possession defendants were sentenced to incarceration: 30,268 to prison, 42,957 to state jails, and 35,564 to county jails.^[303] A significant proportion of the rest likely were released on probation because the prosecutor and judge had no choice: Texas law makes probation mandatory for a first-time conviction of drug possession when classified as a state jail felony.^[304] This suggests that prosecutors and judges chose not to exercise their discretion to offer probation in the vast majority of cases in which they had some choice.In New York State between 2010 and 2015, the majority (53 percent) of people convicted of drug possession were sentenced to some period of incarceration (33 percent for marijuana and 65 percent for other drugs).[299] The average jail sentence was 44 days for marijuana possession and 63 days for other drugs. Approximately 155 adults were sentenced to one year in jail—the maximum sentence for a misdemeanor—for marijuana possession.[300] Approximately 1,441 adults were sentenced for possession of drugs other than marijuana, and 88 percent of these cases were misdemeanors. Among felony drug possession cases, the average prison sentence was 41 months.^[301] At year-end 2015, one of 16 people in custody in New York State was incarcerated for drug possession. Of those, 50 percent were Black, 28 percent Latino, and 20 percent white.^[302]

Between 2012 and 2016, approximately one of 11 people held by the Texas Department of Criminal Justice (TDCJ) was convicted of a drug possession charge as their most serious offense.^[305] Two of every three people serving time in a TDCJ facility for drug charges were there for drug possession.^[306] Human Rights Watch examined charge and sentence length information for the 49,092 people incarcerated by TDCJ for drug possession during six snapshot days.^[307] For the convictions where the drug amount was provided in the data, half were for possession of under one gram (state jail felony), and another 25 percent for possession of one to four grams (third degree felony).^[308]

Among the 20 counties that have the largest number of drug possession cases in Texas, there are significant disparities in the types of sentences received for similar charges, showing arbitrariness associated with geography as well as significant opportunity for prosecutorial discretion:

Nearly 44 percent of drug possession inmates in Texas were serving sentences of two years or less (the maximum sentence for a state jail felony is two years). A quarter were serving sentences greater than 5 years. Third degree offenses (possession of one to four grams) had an average sentence of 5.3 years (the sentence range is two to ten years).^[309] There were clear county disparities in the sentences for drug possession inmates. In counties with 300 or more unique TDCJ inmates, the median sentences varied greatly by county, for all offenses and also for state jail felonies specifically.

Life in Prison in Texas for Drug Possession According to Texas Department Criminal Justice data we analyzed, 116 people were serving life sentences in Texas for drug possession as of February 2016. Ten percent of them (11 people) were sentenced in Smith County, a county that sentenced only 1.7 percent of the state’s overall drug possession inmates. Furthermore, in Texas between 2005 and 2014 at least seven people were sentenced to life in prison for simple possession of an amount of drugs weighing between one and four grams (third degree felony possession)—the weight of less than a sugar packet.[310] Under Texas law, third degree drug possession has a normal sentence range of two to ten years,[311] but if a person has two prior felonies, the habitual offender law gives prosecutors the option to enhance the range to a minimum of 25 years up to 99 years, or life in prison.[312] Although prosecutors need not seek the habitual offender enhancements, they did in these seven possession cases. Moreover, since the sentence is described as a range, not mandatory life in prison, the jury and/or the judge may still impose the minimum sentence, 25 years, or any number of years greater than 25 but short of life imprisonment. In one of the seven cases, public documents suggest the defendant pled guilty, yet he still received a life sentence for simple possession. In the six other cases, a jury decided a life sentence was appropriate, and the judge let it stand.[313]

***

Drug Sentencing Reform and Non-Retroactivity A significant number of states have decriminalized marijuana possession, as described in section XI. For possession of other drugs, some states have implemented reforms reducing drug sentences, though not decriminalizing. These reforms are positive developments, but in many cases they are not retroactive, so thousands of people remain incarcerated, continuing to bear the costs of a felony conviction for actions that the state no longer criminalizes or that it sanctions less severely. For example, in 2015 Louisiana amended its marijuana laws to make the first two marijuana possession convictions misdemeanors and the third a felony punishable by up to 2 years.[314] This means that the most Corey Ladd—serving 17 years for half an ounce of marijuana—could now face, given his two prior drug possession felonies, is 4 years. Yet he has not benefited from the new law. In 2015, Alabama passed Senate Bill 67, adding a new, lowest felony class D that includes drug possession and carries lesser penalties than felony class C, at which it was previously classified.[315] But these reforms are also not retroactive, meaning that people sentenced more harshly under the previous law remain unaffected. Data we received from the Alabama Sentencing Commission indicated that as of October 2015, 14,000 people had been convicted of class C drug possession since 2010 and had received sentences that would keep them in prison beyond SB 67 enactment—meaning retroactivity could have had enormous impact.[316] As a third example, 32 states and the District of Columbia now have Good Samaritan laws that immunize people from prosecution if they seek emergency medical care after someone has overdosed, but again many if not all of these laws lack retroactivity provisions.[317] Thus Byron Augustine is still in a Louisiana prison. Byron called 911 and saved the life of a friend who had overdosed on heroin. Yet Byron was charged with possession of that heroin and was sentenced to 20 years shortly before Louisiana passed its Good Samaritan law.[318] His friend ultimately overdosed again and died while Byron was incarcerated.[319] Human rights law requires retroactive application of new laws that reduce sentences.[320] Retroactivity is particularly important in this context because the changes to existing law reflect a widespread understanding that sentences imposed prior to the reforms were disproportionately harsh and fundamentally unjust.

VIII. Living Under a Dark Cloud: Probation and Criminal Justice Debt

Some people convicted of drug possession are sentenced to probation instead of incarceration.^[321] Probation is a less severe sentence than incarceration but carries an explicit threat of incarceration, and the conditions probationers must comply with to avoid incarceration are often onerous. Many people convicted of drug possession also face steep criminal justice debts stemming from an extensive array of fines and court fees—costs that some courts impose without appropriate regard to offenders’ ability to pay. Together these factors cause many people convicted of drug possession to live in constant apprehension of further criminal sanctions—a “huge black cloud”^[322] that may open up in a downpour at any time.

Probation

The Bureau of Justice Statistics (BJS) defines probation as “a court-ordered period of correctional supervision in the community, generally as an alternative to incarceration.”^[323] Probation often requires regular meetings, drug testing, classes, and fees that can be unrealistic and unforgiving. Seemingly minor violations can trigger sanctions of jail time or revocation of probation.^[324]

At year-end 2014, BJS reported that 570,767 people were on probation for drug law violations (the data does not distinguish between possession and sales), accounting for close to 15 percent of the entire state probation population nationwide.^[325] While BJS does not distinguish between possession and sales in this data, states provide examples. In Missouri, drug possession is by far the single largest driver of felony probation, accounting for 9,500 people, or roughly 21 percent of the statewide probation total.^[326] Simple possession is also the single largest driver of the community supervision population in Florida—accounting for nearly 20,000 cases or 14 percent of the statewide total.^[327] In Georgia, possession offenses accounted for 17 percent of new probation starts in 2015^[328] and roughly 16 percent of the standing probation population statewide at mid-year 2016.^[329]

Onerous Conditions

A large number of individuals in custody and on probation in each state we visited, as well as their defense attorneys, said probation “sets you up to fail.” Probation for drug possession is often designed with specific conditions related to drug use. For people we interviewed, these typically included regular and/or random drug and alcohol testing; weekly, sometimes daily, classes on addiction, anger management, life skills, and sometimes parenting; and meetings with probation officers monthly or on other regular schedules. In some jurisdictions, probation may include drug court participation, described below in section X. In 2009, in the 75 largest counties in the US, BJS reported that 45 percent of people sentenced to probation for drug offenses were required to undergo treatment (BJS did not describe what treatment entailed).^[330]

In every state we visited, interviewees said probation was very difficult. A number of them said probation required so much time commitment that they had to give up a job search or leave present employment. Others described concerns about probation officers visiting a place of employment, interrupting their ability to perform work consistently and making public their probation status. Lindsay Phillips described being on probation for felony possession of cocaine in Florida:

They say [probation is] there to integrate you back into society but it isn’t…. There was no help. I had been offered a great job opportunity to run a lab at a medical facility. My probation officer said to them, are you sure you want to hire a felon? They had offered the job. Then I get a letter: after much consideration, the offer is no longer available.^[331]

Gary’s Story After being sentenced to one-year probation for 0.1076 grams of cocaine in Harris County, Texas, Gary Baker had to quit his job as an interstate truck driver. He said his probation terms, which prevented him from leaving the jurisdiction regularly and required his frequent attendance at probation meetings and drug tests, made interstate driving impossible. Instead, Gary was trying to find work with a temp agency, picking up what jobs he could. He had experienced more than a 50 percent cut in income. He said, “Last week they sent me out three days and I got that little check today. $320, when taxes come out I’ve got $265. I’m used to bringing home $700 a week ... $40,000 a year.” Gary had to pay $72 a month to probation and had $800 in court costs and surcharges outstanding. He owed his brother for his bond and for help with car payments. He was living with his sister and could not afford to pay rent or contribute to food costs. And he was getting calls from debt collectors for the first time in his life. “My main concern is to keep my car. I ain’t worried about the furniture [I’m losing] and all this other stuff. My car, so I can get to work, has to come first. It’s been three months I haven’t been able to pay. [If I don’t pay] tomorrow, they’ll send someone to come get it.”[332]