The grass may seem greener

Issue July 2011 By Aloke Chakravarty

As we continue to search for sensible and considerate drug-enforcement policies, lawyers play a crucial role in previewing the likely practical impact of such changes on the criminal process. An important lesson about the necessity of such a debate can be drawn from the Supreme Judicial Court's recent interpretation of a law created through the direct democracy of a 2008 ballot-referendum which decriminalized, rather than legalized, small quantities of marijuana.

In Commonwealth v. Benjamin Cruz1 the SJC essentially reiterated the law of unintended consequences. In Cruz, the Court held that because the odor of marijuana is no longer indicative that criminal activity is afoot, any evidence seized as a result of the longstanding police practice of searching someone suspected of possessing marijuana is inadmissible. Missing from the debate leading to the law, however, was discussion of how the change would affect the ability to detect crime more generally.2

Practitioners know that valuable evidence of serious criminal offenses involving violent crimes, drug trafficking and firearms, among others, is routinely uncovered when investigators are permitted to track the scent of pot. A change in police procedure may help clear the docket of minor marijuana possession prosecutions, but will unintentionally jettison evidence of much more serious offenses in the process. Nevertheless, the Court concluded that "[i]t is unreasonable for the police to spend time conducting warrantless searches for contraband when no specific facts suggest criminality."3

In an effort to effectuate the referendum's presumed intent, the Court's considered use of the phrase "to spend time" signaled an expansion of its traditional role of assessing the reasonableness of a search into one which assesses the reasonableness of the executive's prioritization. While it is not clear that this was the type of policy calculus that gave rise to the exclusionary rule as articulated in Mapp v. Ohio,4 the Court drew a bright line which impacts far more than mere marijuana possession.

Whether rightly decided or not, the Cruz decision highlights that the collateral practical and procedural implications should be part of the legislative debate, and practitioners must inform it.

One of the foreseeable areas which can benefit from such foresight is in the treatment of so-called "low-level" drug dealers. Underlying a move for alternative sentencing of nonviolent drug offenders is the appeal of the growing body of literature that shows extended incarceration is neither efficient nor effective for some drug defendants. The reform of mandatory-minimum and drug sentencing could hang in the balance.

Since many drug defendants fit somewhere on the spectrum between the personal-use drug abuser and the drug kingpin, the appropriate punishment should avail the growing social science, while also considering the entire dossier of the defendant's position, past and prognosis.

Reform should therefore include relief provisions such as safety valves and other mechanisms for departures to ensure the punishment and rehabilitative options fit the crime and the criminal. However, we must also recognize there is a systemic cost to the relaxing of drug dealer sentencing. Abandoning the likely risk of substantial incarceration for drug dealers altogether could degrade deterrence and debilitation, as well as the incentive to avail perhaps the most effective tool for mitigation, which is cooperation with law enforcement.

Seldom discussed publicly, cooperation by individuals with knowledge of serious crimes is the lifeblood of proactive law enforcement. This is especially true for drug distribution networks. While perhaps imperfectly police-centric, cooperation expands the dossier and creates flexibility for the parties and the courts to consider the net effects of the defendant's criminal and remedial conduct. Only through cooperation can law enforcement penetrate criminal organizations and obtain search warrants, wiretaps and direct evidence against the most serious criminals, whether in the drug trade or of other serious crimes. Without providing powerful incentives to cooperate, such kingpins and commanders will continue to be insulated by armies of "low-level" drug dealers and others who practitioners frequently recognize as economic pawns.

Reform should therefore encourage cooperation without penalizing those who genuinely cannot.5 All sides must recognize that increasing the selectivity of the drug cases in our courts and convicts in our jails begins with understanding how integrated the law, the ecosystems on our streets, and law enforcement really are, and we should explain that dynamic responsibly to the public.

1 945 N.E.2d 899 (Mass. 2011).

2 The only discussion of implications on other aspects of criminal procedure dealt with the proponents' expectation that the police would be "freed up" by the new law to focus on other, more serious crimes. Commonwealth v. Benjamin Cruz, 945 N.E.2d 899, 908-09 (Mass. 2011). (citing Information for Voters: 2008 Ballot Questions, Question 2: Law Proposed by Initiative Petition, Possession of Marijuana).

3 Id. at 913.

4367 U.S. 643 (1961).

5 See Roberts v. U.S., 445 U.S. 552, 558 (1980) (recognizing cooperation, absent privilege against self-incrimination, as an obligation of community life antecedent to rehabilitation).