27 October 2016 — FAIR
Janine Jackson interviewed Tess Borden about drug criminalization for the October 14, 2016, episode of CounterSpin. This is a lightly edited transcript.
Janine Jackson: “Police Arrest More People for Marijuana Use than for All Violent Crimes Combined” is the headline in the Washington Post. In the New York Times, it’s “Marijuana Arrests Outnumber Those for Violent Crimes, Study Finds.”
It’s a blockbuster datum, all right, but one hopes people will read past those headlines, because there’s a lot more in the new report. Every 25 Seconds: The Human Toll of Criminalizing Drug Use in the United States, a study from Human Rights Watch and the ACLU, is a multi-level, cradle-to-grave if you will, look at the myriad impacts of the criminalization—selective criminalization—of drug possession on the people caught up in the system.
We’re joined now in studio by the report’s lead author. Tess Borden is the Aryeh Neier Fellow at Human Rights Watch and the American Civil Liberties Union. Welcome to CounterSpin, Tess Borden.
Tess Borden: Thank you. Great to be here, Janine.
JJ: It is, as I say, a rich report. Give us a sense of the overall focus and intent. What’s being pulled together here and toward what end?
TB: So this is the result of a yearlong investigation by Human Rights Watch and the ACLU into how failed, and very ultimately flawed, the law enforcement approach to personal drug use is. And we wanted to bring to the public’s attention, and to policymakers’ attention, the magnitude of criminalization, but also the human impact. And so I interviewed more than 360 people. A hundred and fifty of those were prosecuted for their own drug use, or possession of drugs for personal use; 64 of them were in custody when I met them. I also spoke to mothers and fathers, sisters and brothers, uncles, children—adult children—of those incarcerated, as well as prosecutors and police and judges and service providers. And so I think, really, there are some 60 stories in the report, and I really urge people to get to know those folks who are described in the report, and whose stories and lives have been really shaped by the drug laws.
JJ: I wonder if you could give us just an example, because media seem to have pulled out what the star datum is. And there’s always a tension of methodology. Journalists tell you you have to tell a story, but then if you only tell stories, you’re being anecdotal and you need data. So the report does both. But I wonder if you could just give a sense of a human impact of the sort that you’re collecting here.
TB: Of course. And you’re right to highlight that. You know, every 25 seconds, someone is arrested for possessing drugs for their personal use, and that’s a human being every 25 seconds.
So one of those people was someone I call Nicole in the report. Nicole was a mother of three young children. She was in school, pursuing a business administration degree in the Houston area. When I met her she was in the Harris County Jail, an infamous jail, charged with crack cocaine residue inside a straw and heroin residue in an empty baggie.
She was there, ultimately, for several months. She was separated from her youngest daughter as well as the other two children. The youngest was still nursing when she went inside. Her breasts were full, she told me, and she actually had to pump herself in the shower.
And she was unable to be the mother she wanted to be. The daughter came to visit her. There’s glass between them, and so the little baby couldn’t hear her mother’s voice. She learned to sit up on her own when her mother was inside.
Nicole eventually pled guilty. It was her first felony conviction. She pled guilty to 0.01 grams of heroin. Her first felony could have been charged as misdemeanor drug paraphernalia instead.
And it meant she would do seven months in prison, and then she would get to go home to her children. But she said it meant, literally, beyond even the punishment of prison, she said, “My life is over, I will be punished for the rest of my life.” Because with that felony conviction, it meant Nicole was going to have to drop out of school, she could no longer qualify for the financial aid that she was getting. It meant she would no longer be able to have her name on the lease of a home she rented, because people don’t want to rent to, quote unquote, “felons.” It meant she would no longer qualify in the state of Texas for food stamps, that she had relied on to feed her children and during her pregnancies.
And so what we’re seeing is just these never-ending consequences of arresting and prosecuting someone every 25 seconds. And it’s not just about mass incarceration. Of course, time behind bars for any crime can have consequences that are devastating to families, but it’s the disproportionality of that heavy-handed enforcement, and then it’s sometimes the lifelong consequences for individuals and families of what prosecution means.
JJ: So often we talk just about the law, first of all, when enforcement is key. That’s one distinction that you’ve just brought up. And then there’s the irreducibility of racism, also, which comes up in the report. It isn’t that everything dissolves into that, but it does come up again and again as an important factor, doesn’t it?
TB: Absolutely. So as a matter of human rights, the right to privacy protects what I do to my body. We find it highly problematic, and even human rights–violative, to arrest and incarcerate someone for what they do to themselves. A private action, right? And so even if there weren’t racial discrimination implications, this would still be problematic.
But as it plays out, it’s even more alarming. And so, yes, the data shows that although black and white people use drugs at the same rates, a black person around the country is two-and-a-half times more likely to be arrested for simple drug possession than a white person. In many states, that number’s significantly higher. In Manhattan, where we are now, it’s 11 to 1, a black person is 11 times more likely to be arrested.
And so how do those numbers play out? What it tells us is police have a lot of discretion about how they use their resources and where they police, and they’re policing in such a way that this is who’s getting picked up, because it’s not who’s using drugs, disproportionately. And I think as a country, we’re looking at racial injustice, we’re looking at policing, we’re talking about these issues. We have to talk about drug possession laws and enforcement. The No. 1 arrest offense, we’ve got to talk about that if we’re talking about race and policing.
JJ: I want to bring you back to, actually, the first part of that. Because of course it’s important when we can show that a policy doesn’t achieve its stated goal—reducing drug use, for example. But sometimes one gets the idea that if we could show, you know, an X percent reduction in Y factor, then somehow the damage that’s done to people’s lives would be cancelled out, would be overridden. And what I really appreciate about this report is the way, first of all, that it centers human beings, but that it also says that the harms done to these people, of itself, are wrong. And I wonder, is that part of what’s meant by a human rights case for decriminalization?
TB: Absolutely, Janine. Absolutely. So the right to privacy is a basic human right. The principle of autonomy undergirds many human rights. And if you want a quick lesson in human rights law: Human rights, such as the right to privacy, can only be restricted, the government can only intervene in those rights, when necessary, proportionate and nondiscriminatory.
Governments may have legitimate interests in protecting people’s health, making sure young children don’t use drugs, etc. It is not necessary to achieve that legitimate purpose to criminalize. We can invest in education, we can invest in prevention, we can invest in the provision of voluntary, affordable treatment in the community in a noncoercive way. So it’s not necessary to criminalize personal drug use to achieve those legitimate government interests.
Second, we know that it’s not proportionate. When you are saddling someone with a criminal record that can follow them for the rest of their lives, when you are locking people up, in some of the jurisdictions I visited, for decades, for personal drug use and possession, it is not proportionate. When you are harming families in this way, it is not proportionate.
And, thirdly, we know it’s not nondiscriminatory. I just gave you those figures. So it simply fails the human rights analysis.
Furthermore, all the harms that we document, in these 196 pages of the report, implicate other fundamental human rights, such as the right to family, the right to liberty, the right to participate in economic and social life of the society you live in. And so even if we could do this in a nondiscriminatory way, even if we could stop rates of drug dependence this way, we’re saying this still implicates fundamental human rights, and we need to tackle the system because of it.
JJ: Let me just ask you, finally: It’s not, of course, an insult to say that this is not completely untrodden ground, that folks have talked about this before. But I just wonder, in terms of media and perhaps the public conversation, what do we need besides evidence? How do we move it from lamentable to unacceptable?
TB: Absolutely. You’re right that much of this is well-known, in certain ways. I think, No. 1, the scope of the documentation is very new, and we really hope to contribute there. I think the human rights framework for decriminalization is new. Not new in the sense that it hasn’t been there the whole time, but new in the sense that we’re laying out those arguments. And, thirdly, I think our call, it’s really a call that should be heard and attended to with utmost urgency right now.
And so we join the voices of a number of UN agencies—the Office of the High Commissioner for Human Rights, the WHO, UNAIDS—we join the call of a number of other advocacy organizations. But I think coming together, the American Civil Liberties Union and Human Rights Watch, to say it is time to decriminalize possession for personal use of all illicit drugs, is very new, in fact.
And we hope that people can hear it today when we have marijuana reforms in the country, and so there are models already to look to, when we realize that the current system is broken on so many fronts—again, the incarceration front, the policing front, the racial justice front—and when we see that the opioid epidemic has shown that drug dependence hasn’t been stopped by 45 years of the war on drugs. I think it’s new, but I think people’s ears are pricked for it.
JJ: We’ve been speaking with Tess Borden, Aryeh Neier Fellow at Human Rights Watch and the American Civil Liberties Union. That report, Every 25 Seconds: The Human Toll of Criminalizing Drug Use in the United States, can be found on both group’s websites, ACLU.org and HRW.org. Tess Borden, thank you so much for joining us this week on CounterSpin.
TB: It’s a pleasure, Janine.
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