“Extremely out of the ordinary” is how Kay describes her experience. Plenty of her friends smoke too, some of them daily. None have ever been in trouble with the authorities for their habit. But one night in October 2009, she became the exception. Breaking up a party in her room that had gotten too loud, campus security smelled pot and asked to search her purse. Kay, who hadn’t been smoking, consented, forgetting about the small bag of weed—less than half a gram—stuffed inside. Her resident head called the cops. Within minutes, she was led out of the room in handcuffs.
After a night of being shuttled between facilities (the booking station didn’t have any female cops on duty to watch her), Kay was handed a court date at 7 o’clock the next morning, along with the rawhide laces confiscated from her moccasins, and released. A month later, a judge would take just a few minutes to throw out her case. While DePaul—the largest Catholic school in the country—required her to meet with a priest, the residence director, and a substance abuse counselor, the Chicago justice system scrubbed her record without a second thought.
Today, Kay sees her experience as something to laugh about, a “comedy of errors.” It’s an anecdote she’s more than comfortable sharing once she gets to know someone well. But her brush with the CPD raises a host of questions. Why are people caught with small amounts of pot arrested and held, at the taxpayer’s expense, if they’re just going to have their case dismissed anyway? Why, in a city that is nearly one-third white, is it so remarkable for a white person to be arrested for marijuana? And how, if the current system of enforcement is unfair and inefficient, can it be changed?
RACE AND WEED
It doesn’t take more than a cursory glance at a demographic map to learn that Chicago is a city with serious racial fault lines. The South Side, with the exception of a few pockets like Hyde Park, is overwhelmingly black. The West Side alternates between heavily black and heavily Hispanic. Meanwhile, whites live primarily on the North Side and on the city’s fringes. Few people familiar with the city’s makeup would have expressed surprise at a report issued earlier this year by the Manhattan Institute for Policy Research, which concluded that, despite experiencing the second-highest increase in integration over the past decade, Chicago remains the most segregated city in the nation.
Although restrictive covenants and race riots are a fading memory for many Chicagoans, the polarization of their neighborhoods is only the most visible reminder of the tensions that continue to inform the city’s politics and culture. Law enforcement, in particular, remains a flash point. The CPD, which now employs almost as many minorities as whites, has pushed back against a reputation in some quarters for bias and brutality with initiatives like community policing, aiming to prevent crime by fostering close ties between neighborhood residents and officers on the beat. But accusations of mistreatment and racially motivated arrests continue.
Looking at law enforcement statistics, the questioning of the CPD’s motives is understandable. Illinois leads the nation in the proportion of drug crime arrestees who are black. And in an analysis of Cook County records conducted by the Chicago Reader last year, the disparities in arrests for misdemeanor marijuana possession were striking. Although Chicago is about 33 percent black and 32 percent white, of the 47,400 people arrested in 2009 and 2010 for whom possession was the most serious charge, 78 percent were black, and 5 percent were white. The racial disparity in convictions is even more extreme: For every white person convicted for possession, 40 black people were found guilty.
A HIGH PRICE
Along with the puzzling demographic skew in arrests and convictions, Chicago’s prosecution of pot smokers faces another criticism, one that has gained greater urgency in an era of budget cuts: It’s expensive. Last summer, Cook County’s budget was more than $300 million in the red. Mayor Rahm Emanuel’s last budget, whose cuts to some city services has triggered numerous political fights in the past months, was drafted under the specter of $650 million in projected deficits. Chicago Public Schools might have to find $1 billion by 2014 to cover their obligations.
While politicians look for programs to slash, the criminal justice system in the city incurs a number of fixed costs for every person that passes through its cells. While about nine in 10 have their charges dropped, Cook County still has to keep its prison lit and heated, its staff available to process and watch inmates, and the accused fed. The total cost to the taxpayer, according to Cook County Board President Toni Preckwinkle: $143 per night, per prisoner.
That figure doesn’t include overtime pay for police officers to appear in court when someone is brought before a judge. Nor does it include the time spent by the judge, public defender, and other employees of the court on cases that by and large get thrown out. And although the vast majority of offenders don’t end up serving time, in theory a misdemeanor could come with up to a year in jail. Whether they spend a few days in prison or longer, the disruption to their lives also imposes additional social and economic costs to themselves and their communities.
Of course, all of this does not necessarily mean that Chicago police are pursuing an explicitly racist agenda to the detriment of public finances. As told to me by a CPD officer who spoke under anonymity, “If you have a small amount of pot (personal use), nine out of 10 of us won’t take you in. It’s a misdemeanor that almost always gets thrown out in court.” But there are extenuating circumstances that might make an arrest more likely and arguably even beneficial for public safety.
Misdemeanor possession charges are sometimes used as a tool by police officers looking to get some- one off the streets fast. If they suspect someone of being involved in a more serious crime—say, a shooting—but haven’t assembled enough evidence yet, a few joints might be the most expedient way to prevent someone from causing more harm. A night in jail might also be a convenient way for law enforcement to let gang members cool down when tensions arise.
Another argument in favor of arrests for misdemeanor possession can be found in the so-called “broken windows theory.” Most famously associated with successful efforts to reduce crime in New York City in the ’80s and ’90s, the theory is based on the idea that a general sense of disorder is a major factor in the propagation of violence in urban neighborhoods. Ac- cordingly, aggressively targeting smaller crimes that contribute to a feeling that an area is unsafe—such as graffiti, public drinking, and, yes, marijuana smok- ing—is supposed to restore a sense of the rule of law, leading to a decline in more serious infractions. Since this policing strategy is applied to neighborhoods with high crime rates and those neighborhoods tend to have heavily minority populations, it follows that the racial disparity in arrests can at least partially be explained as a reflection of the geography of crime in Chicago, rather than bias on the part of the police.
However, there are several issues with these justifications. Although there may be a practical explana- tion for the numbers (something that would require a far more rigorous statistical analysis, anyway), it doesn’t detract from the sense of unfairness that comes with selective enforcement of the law. Consequently, it must be questioned whether these methods are doing more harm than good to the cause of law and order by generating distrust of law enforcement in minority neighborhoods.
Additionally, the broken windows theory, though continuing to inform the thinking of the Chicago Police Department, is not necessarily borne from sociological research. Since its debut three decades ago, numerous other explanations, from economic changes to Roe v. Wade and the ebb of the crack epidemic, have been offered for the decline in crime rates in New York and other locales that employed its precepts. Numerous scholars have assailed it as ineffectual at best and a thin veil for racial and socioeconomic discrimination by law enforcement at worst. And even many in favor of a hard-line approach to crime, including Chicago Chief of Police Garry F. McCarthy, now openly worry about the social cost of the high rate of incarceration in Chicago and around the country. But if the status quo isn’t working, what will?
A NEW DIRECTION?
“We all know that the War on Drugs has failed to end drug use. Drugs and the failed War on Drugs have devastated lives, families, and communities. For too long, we’ve treated drug use as a criminal justice issue rather than a public health issue, which is what it is. Rather than continue this cycle of arrest and detention and imprisonment, we must shift our focus to prevention and intervention. Rather than investing in detaining people in the Cook County Jail at almost $150 a day, we need to invest in treatment, education, and job skills training.”
These words would not be very surprising coming from a community activist, social critic, or academic. But until recently, it would have been unusual for elected officials, conscious of the stigma attached to being “soft on crime” in American politics, to say something of the sort. This explains why it made na- tional headlines when Cook County Board President Toni Preckwinkle said them at a rally in downtown Chicago last summer commemorating the 40th anniversary of President Nixon’s declaration that substance abuse was “public enemy No. 1.” Since that moment, the debate over drug arrests has been more visible than usual, jumping from City Hall onto the pages of local newspapers—and out to the public at large.
“Studies show that drug use is pretty much the same across all different race and ethnicity backgrounds, but we do see disproportionately high arrests of people of color,” said Juliana Stratton, executive director of the Cook County Judicial Advisory Council. However, she is quick to point out the “deep respect” Preckwinkle has for the CPD and that the issue amounts to more than racism. “One of the things we have to acknowledge is that many possession arrests do occur in poor neighborhoods that are wracked with violence, and the police are really struggling to control serious crime. When you look at the overall numbers of those who are being arrested, you will find more people of color, especially young people, and we know that just continues to destabilize communities. So I think it’s not just an issue of race: It’s also an issue of poverty.”
Echoing her boss, Stratton points to the War on Drugs as a failure, evidence that “arresting our way out of the issue is not effective.” In its place, she says, policy makers are beginning to ask, “What do people need so they do not continue to cycle in and out of the system?” Decreasing the prison population is a main goal; one of the alternatives being examined is ticketing instead of arresting, which would help people avoid a criminal record that might prevent them from finding a job or receiving financial aid. More broadly, Preckwinkle’s office wants to make sure that “when we think about criminal justice in Cook County, we don’t just start with the jail. We go to the point of people getting connected to the system, the point of arrest, and seeing if we can get on the same page [with the police] with the overall goals, which are that those that are a danger to society are the ones that we focus on in terms of detaining.” As for those charged with low-level possession, Stratton adds, we should be “asking the question, ‘Is that really what poses a public safety issue?’ As the political debate continues, I think people are pulling away from that.”
If it were up to Cook County, changes in drug policy, emphasizing treatment rather than impris- onment, would likely already be underway. But the county just runs the jail and has no direct power over the police department that fills it. Instead, the county is seeking an ongoing dialogue with the city and the CPD, in order to reconsider the effectiveness of current law enforcement practices. Although there has been much discussion over the past year, no chang- es to Chicago Police Department policy have been announced. As Stratton acknowledges, “For political leaders, it’s often a question of not wanting to appear soft on crime. That’s been a struggle in this debate throughout. I think we are moving forward in terms of having this as a topic of conversation. The challenge we have is, if we have this conversation, how will people perceive it in terms of whether you’re being tough enough on crime?”
DECRIMINALIZATION OR LEGALIZATION?
Even as the new approach floated by Toni Preckwinkle and her team remains in limbo, some advocate a step for which few figures in elected office are willing to express support: full legalization. “We do support Preckwinkle’s efforts to change these policies,” said Dan Linn, executive director of the Illinois chapter of the National Organization for the Reform of Marijuana Laws (NORML), “but we are advocating for the removal of all criminal penalties for respon- sible adult possession, consumption, and cultivation of cannabis. Writing someone a ticket instead of arresting them is a better option, but we don’t think they should get penalized at all.”
In Linn’s view, a problem with decriminalization is that it gives police officers, who could still collect fines from marijuana smokers, a continuing finan- cial incentive to go after offenders. Furthermore, if reform in Chicago looked like decriminalization in other jurisdictions, it might not solve the issue of discrimination. “Most of these decriminalization or- dinances have a clause in them where the officer can arrest the suspect if they decide to, and that’s going to lead to cases of discriminatory arrests. There are also problems with people without identification on them, who would be subject to arrest instead of a citation. Unfortunately, people in low-income commu- nities can’t always afford to have a state ID or driver’s license on them—and those are the people who will get arrested, the people we’re looking to help with these changes in policy.”
Another cause for concern, even with prison mostly off the table, is that financial penalties for marijuana users would be excessive. “There’s a decriminalization bill down in Springfield right now where the penalties for possession of less than an ounce of cannabis are $500 for a first offence, $750 for a second offence, and $1,000 for every subsequent offence. That frankly is just too much money for someone who can hardly afford to put food on the table as it is,” Linn said. “If they have to pay a $1,000 ticket or pay rent, they’re probably going to pay rent, and then have a warrant issued, and then be subject to arrest. And that’s exactly what we’re looking to avoid: giving these people a criminal record. It doesn’t do anybody any good.”
Like Juliana Stratton at Cook County, Linn believes that the political debate is trending toward greater leniency for marijuana smokers. However, he is optimistic that, moving forward, support will shift toward full legalization instead of decriminalization or other smaller reforms, because of the better economic and criminal justice outcomes he sees associated with the former. “The political climate right now should really be about legalizing it, regulating it, and taxing it to help with the struggling budgets at all levels of government.” Drawing comparisons to the end of Prohibition, NORML and its allies see the legalization of marijuana as both a prospective boon to government coffers and a potentially huge blow to criminal networks, not to mention a massive relief for the average consumer. With decriminalization, “it’s still illegal to have and sell the product, and therefore you’re going to have criminals controlling the distribution. If you take it out of the underground sector, legalize it, and regulate it, you can control better who’s producing it, who’s distributing it, who’s getting it, and where they’re able to use it.”
Given the slow and often-mystifying way politics works in Chicago, it’s impossible to accurately guess when drug policy in the city will change. However, talking to people both in and out of government, it’s hard to find someone who doesn’t believe it will change, at least eventually. Preckwinkle’s remarks last summer demonstrated to a remarkable degree that drug reform is now a major topic of conversation in the halls of power. And looking at events elsewhere in Illinois indicate that talk may well be transformed into action: Since 2009, Urbana and Evanston have both decriminalized possession of small amounts of marijuana, while Springfield has changed possession from a crime to an ordinance violation.
Meanwhile, legalization, once a political nonstarter, is generating increased interest. In a Gallup Poll last year, a record 50 percent of Americans supported legalization. In what is certainly a trend to watch, support was the heaviest among the youngest voters, aged 18 to 29, with each successively older generation registering lower levels of approval. This could mean legalization will be an increasingly popular po- sition as time goes by. For the moment, no attempt at statewide legalization has been successful, with even famously liberal states like California rejecting it by substantial margins. However, with ballot initiatives this November in Colorado and Washington and more efforts on the horizon, the issue remains in flux.
In April, the world’s most famous Chicagoan, Barack Obama, flew to Colombia for the annual Summit of the Americas, where many of his Latin American colleagues publicly voiced the view that ending the War on Drugs was essential to reducing crime in their na- tions and in their northern neighbor. The United States government disagreed. “I don’t mind a debate on is- sues such as decriminalization,” the President told an interviewer, but, holding fast to his administration’s policy line, added, “I personally don’t agree that that’s a solution to the problem.” There is little hope, most observers agree, that drug policy will change much in the near future, at least at the federal level. But one thing is certain, in both Chicago and the nation at large: That debate, whether political leaders mind it or not, has already arrived.