Jason Miller is an attorney entering his third year with the Bronx Legal Defenders in New York City. He received his law degree from the University of Pennsylvania.

I always believed the kind of liberal platitudes about drug cases- that it’s a war on the poor, etc. But I just believed. I had a sense about it because people told me it was true. The real experience of being a criminal defense lawyer shows you empirically, personally, that it is true. There is disrespect in our society for those who are marginalized.

There is an over-policing to an extent people just don’t understand. I am white. I am from Philadelphia and live in New York City and I’ve never been stopped by the police. But if you are in the Bronx and poor, chances are you are going to be arrested at some point in your life. The police just don’t care.

They’ll stop people in this community and try to figure a way to get something on them so they’ll (the citizens) turn info for them. They have to meet quotas. That all just sets the scene for the drug cases. The vast majority of drug cases are users- in for anything from residue to bags of cocaine for personal use.

Users get relatively compassionate treatment. There are some judges who will sentence them to other programs, and who acknowledge that in a way their disease, addiction, is not their fault, that it’s out of their control. It’s not a cliché that relapse is a part of recovery.

People have an image of drug dealers as rapacious, parasitic monsters, usually though actually, they are just people with histories of mental illness and backgrounds of extreme poverty who see no way to get the things they need and want in life without dealing drugs. They are small timers to the extent they often look homeless.

“There is an over-policing to an extent people just don’t understand.”

New York City offers a “task plea” – 12-18 months in a treatment program with jail as the alternative if you are kicked out. If you are a predicate felon, someone who has been convicted of a felony in the last 10 street years, the resultant jail time is 4½ -9 years.

I have a client for instance who is a predicate felon who took a task plea. But he was brought in on needle possession and other violations. He is mentally ill, gay – has had a hard time with that in the program and in life. He had a completely impossible life and will be sent to prison for one transaction- he sold one bag of heroin and is a completely fucked up person and is going to prison for over four years because he couldn’t make it through his treatment program because he relapsed.

There is not a Harm Reduction approach. You simply can’t use. One positive urine, and you get remanded by the court. It’s a completely unreasonable expectation- that those who spend their whole life as an addict can now all of a sudden not use drugs at all for 12-18 months after what can easily be more than a 10 year habit.

Q: Anecdotally these stories can be compelling, but on what scale is this happening? Are these just isolated cases?

All the time. All the time. There are people with lots of problems and trial is too big a risk for a predicate felon they could easily get up to 12 or more years. By taking a task plea than can sidestep mandatory minimums. The Rockefeller Drug Laws are irrelevant in misdemeanor cases, they are just relevant for felonies. If they complete (the treatment program) successfully can re-plea to a misdemeanor, like 7 th degree drug possession, so (while in treatment) they have this sword hanging over their heads the whole time of a prison sentence.

Attempted murder is a B felony. Assault in the first degree is a B felony. And selling one bag of heroin (a street value of $5 dollars) is a B felony. It’s way too serious.

You have to understand the way that narcotics division works in the Bronx- an undercover officer, arresting officers, sergeant, ghost and a back up team of 2-3 officers. So it’s a large team of about 7 people for a bust.

The undercover or primary goes out with some equipment- a kel receiver rigged up to a car with an officer sitting in it about two blocks from the location.

The undercover is followed by the ghost whose main objective is the primary’s safety.

The primary goes out with pre-recorder buy money, they have photocopied the serial numbers so that when they arrest the guy he hopefully has the buy money on him.

After the primary makes a buy and is away and safe, he gives a description to the arresting officer and back up team without giving up his cover. At that point the arresting and back up team people come in the neighborhood and start to find people who generally match the description- usually something like, “male, black, blue jeans, sneakers.”

They stop all these guys, line them up, and then the undercover drives by in a car with tinted windows to make the id.

The problem with the system is that the police officers completely misidentify all the time. Generally, they get someone, hope they have a criminal record, and then put the case on them. It is completely coercive, because, you see, 96-98% of cases go to plea.

“96-98% of cases go to plea… If it went to trial it would probably bite them in the ass.”

A coercive plea system does not incentivize that police officers be right, not even to be careful. If it went to trial it would probably bite them in the ass.

They don’t even bother to record the kel description because they want the latitude to make up the description in the report write up afterwards.

Q: So are you suggesting that the police officers frequently make stuff up?

They lie almost every time they testify. Depends on what you mean by a bad cop, most want to help the prosecutors win- they’re not honest- that’s for sure- they practically lie every single time. They believe in moral guilt and that if you’re a scumbag, you’re a scumbag for life. They amplify testimony all the time to help prosecutors get a win. Narcotics officers are the most corrupt in the system, very arrogant.

Q: But even if someone might not be guilty of that particular crime, if you know people are breaking the law regularly is it so bad to have them behind bars?

The problem with that way of thinking is that it doesn’t take into account the larger sense of civil rights. We have to balance the rights of the individual with the interests of society. No one should go to prison for a crime they didn’t commit, get arrested for no reason.

It is a reality. Before I started this job I didn’t realize it was a tangible, documentable phenomenon. Can you imagine what would happen on the upper west side if police just started stopping people? The Rockefeller drug laws give a perverse incentive to police officers- because the incentive is to be opaque, to just arrest people, not to be transparent.

There is also a radically unfair bail system. The people locked up often have no money, but because it’s a B felony, the bail is entirely beyond the possibility of making bail.

Q: Isn’t it expensive for the city to keep so many people in jail?

I think the city is doing this because- it is a way of disguising the fundamental inequality in society. Poor people are selling drugs and the response is to clean up the community.

“…it’s a way of disguising the fundamental inequality in society.”

I no longer doubt that arresting millions of people reduces crime- but that’s not surprising. The crime rate definitely goes down under martial law. If you want to live in a society where police can act arbitrarily, you are free to live in that society. People assume that if they are law abiding they are not going to get in trouble. I spit on the sidewalk, I take my dog out without a leash, I’ll never get arrested for that. But the people here- they will.

Spitting on the sidewalk, walking the dog without a leash, improper vaccination paperwork for animals, open containers, riding a bike on the sidewalk, in the park after dark, improper possession of a laser pointer… my clients are brought in on everything. When was the last time you got arrested for riding your bike on the sidewalk? Never.

Q: What kind of effect does this have on families?

It’s really, really harsh because a lot of drug laws- the collateral consequences are even more unfair than the laws themselves. Sometimes whole families are evicted because one of the children was dealing drugs. They are trying to get drugs out of the projects, but they are doing it with such blunt force they are just making people homeless and degenerate.

Q: So what is your top policy priority in terms of what should be fixed first?

My recommendation would be completely systematic. I would eliminate mandatory minimums for every crime in the system. To me, the very definition of fairness… let’s just say, I think people get confused because mandatory minimums reign in discretion and the disproportionality of sentences, why would it be fair for one judge to give a year and another to give fiver years?

To not treat people similarly situated exactly the same- that is the idea of proportionality. The Supreme Court discussed this. For every death penalty case you must have the opportunity for mitigation. You can’t treat person X and person Y identically because they are in completely different environments and situations. It’s a bad quick fix to not take into account the individual’s circumstances.

It’s a child’s view of what is fair, that everyone should get exactly the same thing.