40 UVA Lawyer / Fall 2011
we hardly ever enforce the specified penalties!” suggests at the very least that the law is poorly designed if so many guilty people get off lightly. The larger problem is that focusing on lengthy, postconviction terms of imprisonment captures only a small fraction of the total enforcement activity involving drug laws. Being in jail for any amount of time is a fundamentally traumatic experience. Some people are strip searched. Some are beaten during the arrest or afterwards. A broken jaw is terrible, but even more so if you’re locked in a room with the person who broke it. The drug war reaches far beyond the millions serving prison sentences to the millions more who are sitting in jail waiting to get or make bond, or to have their probation revoked, or to go to trial after the case has been continued so many times by the state. One of my clients was arrested in 2009 on 68 felony counts of “withholding information from a practitioner to obtain a prescription.” Bond was set at $200,000 because of the number of charges, a sum my client could never afford. The district attorney’s office refused to indict the case for a year and a half. That meant no opportunity to plead not guilty, no opportunity to investigate the charges, and certainly no day in court to fight his case. So the case was indicted (13 of 68, at least), and we were finally able to get discovery and see what sort of evidence the state had—thirteen prescriptions from my client’s doctor for pain medications. Since the statute criminalizes withholding information from a practitioner about prescriptions from other doctors, I looked forward to being able to vindicate my client at trial as soon as his case was placed on the calendar. But when it was called for trial, the assistant district attorney—an intelligent, capable young woman who in no way believes herself to be doing anything but striving to bring justice to dangerous people—announced that she would have to request a continuance because she had not served all her witnesses. I pointed out how my client had been in the county jail for over twenty months and desperately wanted to prove his innocence, but the judge granted the continuance as a matter of course. When the case next appeared on the trial calendar, I was determined to give my client his day in court, and subpoenaed all of the state’s witnesses myself to ensure that the prosecutor couldn’t use the same excuse again. This time she asked for a continuance because she wanted to re-indict the case; apparently the charges that were good enough to Terry Wolf
they likely won’t be going home soon. Those conversations can be heart-wrenching even when the accused really has done something to deserve that treatment; it is just naturally unpleasant to watch people suffer. But when those accused are charged with nothing more than peacefully using or distributing politically unpopular drugs (in contrast to alcohol, for example, which is legal but generally claims a broader range of negative effects), explaining why our country has deliberately chosen to treat them in the same way that we would a thief or a child molester becomes more than unpleasant—it becomes untenable. The untenable seems to make up much of my routine, though. A client learns he is facing fifteen years in prison for sharing his prescription. A burglar has his charges dropped after he lets law enforcement watch him buy marijuana; the young man who sold him the nickel bag goes to prison. Some officers take the witness stand and lie fluidly about how a handcuffed man voluntarily gave them consent to search his house. The jail hallway echoes with the shouts of desperate men locked up for months or even years without formal charges. I beg a prosecutor to suspend a prison sentence so that a grandson caught with less than a gram of cocaine can continue caring for his ill grandfather. Sadly, these small events express our philosophy of criminal justice. More precisely, that philosophy is articulated by what legally triggers these moments. When should we send armed men after our fellow citizens? Though the term “armed men” may sound harsh (a prosecutor once made an objection to my use of that term during a motion to suppress hearing, which the judge overruled despite characterizing my phrasing as “dramatic”), it feels even more so to the people pulled out of bed at Catherine Scott Bernard ’07 3 am by a SWAT team and locked up in a strange and dangerous place filled with strange and dangerous people, many of whom, in their eyes, are the people wearing uniforms. Whether the incarceration lasts an hour, a month, or twenty years is irrelevant at that point; what matters is that a person could be labeled a criminal with immediate and often permanent consequences. The forceful and intrusive nature of an arrest or even a search makes it difficult to understand why supporters of drug laws justify them by claiming that most drug offenders do not receive the lengthy prison sentences contemplated by statute. The cry of “But