“I remember those words of his though seventeen years have passed,” said Ayala, whose passenger, his girlfriend, was black. He was convicted of transporting nine grams of crack under a complicated formula that allowed the prosecution to count seven hundred dollars in cash as though it were part of the drug stash. He’s now doing the familiar twenty-five years to life in Salinas Valley State Prison in Soledad, California, and remains tortured by his decision to turn down the six-year plea deal because he knew that under the law, the officer who pulled him over had no right to search him. As years pass it becomes harder and harder to appeal his case. Ayala, born in Mexico, was still struggling with English when he went inside. Other inmates helped him sift through statutes and court records related to his case. But witnesses disappear, cops retire to Idaho, evidence is lost, and what happened so long ago begins to feel trivial somehow, even less worthy of serious scrutiny than it was originally. Ayala’s case is like some old cardboard box sitting on a shelf in someone’s garage. There may be something inside, but no one is bothering to find out.
Because the drug war is heavily spiced with elements of the irrational, its advocates tend to be more zealous in its defense, even to the point of monitoring its foot soldiers. Ask border patrol agent Bryan Gonzalez, who was fired for wrongful speech.37 On a slow day in April 2009, as he worked near Deming, New Mexico, Gonzalez and fellow agent Shawn Montoya pulled their vehicles next to each other, rolled down their windows, and shot the breeze. During the course of the conversation, Gonzalez remarked that present policy wasn’t working and that legalizing drugs would be the most effective way to curtail violence along the border. He mentioned LEAP and also expressed sympathy for migrants whom agents routinely intercepted crossing from Mexico to seek work. Montoya disagreed, but the conversation remained friendly and, Gonzalez thought, unremarkable. Later, however, Montoya related the discussion to another agent who reported it to Washington. Soon Gonzalez was the subject of an internal affairs investigation.
Gonzalez didn’t even know he was being investigated when, obeying what he thought was a routine request from his supervisor, he reported to the El Paso office. In El Paso his interrogators asked questions such as, Do you have plans to overthrow the government? and Are you a socialist? Agents reminded the shocked Gonzalez that he hadn’t quite finished his two-year probationary period. They collected his badge and gun that very day. In the termination letter that soon followed, the agency decreed that Gonzalez held “personal views that were contrary to the core characteristics of Border Patrol agents, which are patriotism, dedication, and esprit de corps.”38 Gonzalez later complained that he was fired for using the rights afforded citizens by “the very Constitution I swore to uphold.”39 Aided by both LEAP and the ACLU, he sued for wrongful termination and compensatory and punitive damages.
Terry Nelson, a LEAP board member and former Border Patrol agent, jumped to Gonzalez’s defense. “There’s no doubt that the so-called war on drugs is a gigantic failure and that it causes violence, hurts our economy and forces dedicated law enforcers to risk their lives in the line of fire for a lost cause,” he said. Agents like Gonzalez who put their lives on the line, he added, should have the right “to exercise the First Amendment and share their views on policies that impact them on a daily basis.”40
Gonzalez’s case is reminiscent of Hans Christian Anderson’s story “The Emporer’s New Clothes,” except in the story a child exposes the emperor’s nakedness. In this case, Gonzalez was punished for daring to speak the truth, and the emperor continued parading around without any clothes.
During World War II U.S. citizens who’d fought alongside Spanish loyalists against Francisco Franco were harassed by the FBI for being, as the saying went, “prematurely anti-fascist.” At some point when drug laws catch up with good sense, victims of absurdity such as Gonzalez may well be seen as having been prematurely reasonable in their assessment of U.S. policy.
In 1996 then-senator Phil Gramm (D-TX) tacked an amendment onto the Welfare Reform Act that barred drug offenders from receiving food stamps, public housing, or other forms of welfare. During the two minutes of debate allocated to his brainstorm, he said, “If we are serious about our drug laws, we ought not to give people welfare benefits who are violating the nation’s drug laws.”41 Why this punishment must last for a lifetime was never explained. Nor was it explained why drug offenses were more serious than murder, rape, arson, or bodily mayhem, none of which were included in the ban.
The bill, with amendment intact, was quickly approved by Congress and signed by President Clinton. The law also enacted collective punishment, meaning if one family member was convicted, all other family members also lost the public housing benefit. It even created a catch-22 provision that made drug offenders ineligible for residential drug treatment because the government would no longer subsidize their room and board.
Two years after the Welfare Reform Act was passed, Congress enacted an equally punitive amendment to the Higher Education Act that denied loans, Pell grants, and even work-study jobs to the tens of thousands of would-be students who every year were convicted of drug offenses. Even those convicted for minor pot offenses were affected.42 Once again, no other criminal conviction triggered such a ban. It was yet another law demonizing drug offenders for life, making them the modern version of biblical-era lepers.
These laws presume that drug offenders cannot be rehabilitated and that it’s pointless to provide them with tools to help them climb out of their situations. Punishment must persist beyond their sentences and even outside the criminal justice system. By barring avenues of escape and rehabilitation, these discriminatory edicts work to perpetuate drug use and trafficking. Many users will consequently see drugs as a way to kill the pain of their statutorily enforced dead-end lives and will sell them to survive when education and employment are blocked.
Until recently, statutes treated crack—cocaine cooked in baking powder—as though it were precisely a hundred times more potent than powdered cocaine. Unsupported by science, this equation was nonetheless repeated in an endless series of sensationalist stories that accepted it without checking it out, and these stories ultimately helped to transform hysteria and rumor into law.43 The penalty ratio for crack was particularly damaging to minorities, especially African Americans, who used crack, a cheaper grade of cocaine, at higher rates than other ethnic groups did. A person convicted of possessing five grams of crack—about the weight of five packets of Sweet’N Low—received a mandatory five-year sentence. Finally, in 2010 President Obama signed legislation that reduced the formula so that it now takes twenty-eight grams to trigger the five-year sentence. The National Association for the Advancement of Colored People (NAACP) calculated that about twelve thousand inmates in custody would be released by retroactive aspects of the new table, which went into effect 2011; ten thousand of those inmates were African American. But Attorney General Eric Holder recommended that the number of early releases be sliced down to fifty-five hundred. The decisions were to rest with the judges who heard the cases. They could grant or deny prisoners’ petitions or even initiate them on their own.44
Senator Charles E. Grassley (R-IA), the ranking Republican on the Judiciary Committee, called the reform a “bad idea.” Representative Lamar Smith (R-TX), chair of the House Judiciary Committee, said he was “disappointed.”45 Crack offenders “knew what they were doing,” echoed Jim Pasco, executive director of the Fraternal Order of Police, which represents more than 300,000 law enforcement officers. But drivers who don’t come to a complete stop at a stop sign also tend to know what they’re doing. It doesn’t necessarily follow that they should get extended prison sentences. Without retroactive adjustments, many convicts sentenced under the old formula would remain behind bars, watching recent offenders serving shorter sentences come and go.