Pubdate: Sat, 04 Aug 2012
Source: Muskegon Chronicle, The (MI)
Copyright: 2012 The Muskegon Chronicle
Contact: http://www.mlive.com/mailforms/muchronicle/letters/index.ssf
Website: http://www.mlive.com/chronicle/
Details: http://www.mapinc.org/media/1605
Author: Brian Hosticka

WANT TO EMPTY THE JAIL? CHANGE HOW WE HANDLE DRUG OFFENSES

I'm a criminal defense attorney. My practice includes court-appointed
work for the many indigent of Muskegon County. I recently attended a
meeting of the Muskegon County Board. On the agenda was funding for
Muskegon County public defense. Several of my colleagues spoke to the
board about high case loads and low pay. When they finished, one of
the board members looked our way and asked how we could complain about
pay when we can't seem to do much about chronic jail overcrowding in
Muskegon County.

I wanted to respond, but couldn't find the words. It is true, after
all. Muskegon County has a severe jail overcrowding problem. Now that
I've had time to reflect, I feel compelled to offer a response.

When the Muskegon County Jail was built over 50 years ago, it was
built to house a typical number of inmates. Back then there were more
people in Muskegon County. Yet the jail was big enough. Obviously, the
architects of the new jail could not conceive of so many inmates. So,
despite a declining population, somehow we have more criminals -- a
lot more. Does this mean that we have become worse people than our
grandfathers?

Many may answer that in the affirmative, but I'm not one of them. Our
generation's new criminals are not murderers, rapists and thieves.
They are those caught up with illegal drugs. Over two decades the drug
war has fueled an explosion in the jail population not just in our
county, but nationwide.

Every year large numbers of people are stopped, questioned and frisked
by the police under a "stop and frisk" policy. The courts routinely
hold that these searches are constitutional. This is true in Muskegon
County. Most of the subjects of these searches are young. And most of
them are minorities.

When a police officer discovers marijuana, for example, on someone
during a legal search, there is little a defense attorney can do. The
focus quickly shifts from defending against the charges to minimizing
the impact on the person's future.

According to the March 2012 issue of the Michigan Bar Journal, the No.
1 felony in this state is possession of a controlled substance. The
No. 2 felony is possession with intent to deliver. Drugs-related
offenses dominate arrests. More than assaults, more than shoplifting,
more even than drunk driving. The impact of these arrests is severe,
especially for young people of color. It creates serious barriers to
college and future employment. Such a person's future may begin to
spiral downward. What may be worse is that the damage to the police
and community relations cannot be overstated.

It's ironic that what these people are arrested for is increasingly
socially accepted behavior among the more privileged. The connected
and powerful, including lawmakers and even presidents, have often
admitted to smoking marijuana. But hypocritically they have not become
the criminals that we have turned our young and underprivileged into.

What have our policies wrought? According to The Economist's "2012
World in Figures," the United States leads the world with a prison
population of 2,292,133 inmates. In second place is Communist China.
With over three times our population, China has 1,650,000 prisoners.
We also lead the world by a large margin in imprisoning 743 out of
every 100,000 people. Second on the list is Rwanda, with 595 prisoners
out of every 100,000.

Shameful. How can our democracy imprison its citizens more than
anywhere else in the world, including the most nefarious police
states? We are not more evil. We are not among the top 20 nations in
homicides per 100,000 people. We are not among the world leaders in
robberies. The real problem is over indulging the misdirected
animosity of the drug war.

Back to Muskegon County. By my unofficial count, in the first six
months of 2012, 83 people had pretrial conferences for misdemeanor
possession of marijuana. Another 32 for felony marijuana possession.
Keep in mind these numbers include only those that pled not guilty at
their arraignment. Therefore the actual numbers of those
unceremoniously marched through the court system for marijuana are
almost certainly significantly higher. And this county is not that
big.

In those places that are big, realization that justice demands change
is setting in. This year, both New York and Chicago made changes to
address the same problems we face in Muskegon. Prior to 2012,
according to CNN, 50,000 people in New York City were arrested for
possessing small amounts of marijuana. New York spent about $75
million dollars per year on arresting and prosecuting people for
recreational marijuana possession. This year, New York reduced the
classification of public possession of small amounts of marijuana from
a misdemeanor to a civil infraction. In other words, it's been
decriminalized.

In Chicago, similar steps have been taken. On July 1, 2012, the
Chicago Tribune reported that the recent decriminalization of
marijuana could stand to generate millions of dollars of new revenue
for the city by ticketing the over 18,000 annual offenders rather than
turning them into criminals.

Decriminalization is one possible answer. Legalization is another.
This would offer regulation and taxation similar to alcohol and
tobacco. A huge new government revenue stream could concentrate on
offering drug treatment, rather than creating criminals.

Although I believe that justice and fairness will eventually lead to
one or the other, decriminalization or legalization is a long way off.
There are, however, steps that could be taken soon to address Muskegon
County's problem. There is an election coming. There will be a new
prosecutor and Circuit Court judge. I urge all residents to support
candidates that support a drug court in our county. A drug court would
offer drug abusers the treatment they need instead of jailing them.

So the problem, Mr. Boardmember, of jail overcrowding is not public
defenders. Ours is a uniquely American problem. Thankfully, it is
starting to be righted in some places. Eventually the correction will
come to West Michigan. When it does, if we have ourselves a shiny, new
and bigger jail, the empty spaces will echo.

We have created this generation of criminals. It's been such a
waste.

Brian Hosticka is a criminal defense attorney in Whitehall.
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