“There are lies, damned lies, and statistics…”
— attributed to British Prime Minister Benjamin Disraeli by Mark Twain
The news article Bill Hudson quoted in Part One of his editorial series, about Pagosa going to pot, pretty much sums up what is actually going on here.
“The Sheriff’s Office managed to obtain 12 search warrants, which led to three felony arrest warrants and four misdemeanor summons, and facilitated the destruction of approximately 500 marijuana plants.”
There is an old political adage that “No matter what they are talking about, they are really talking about money!” When it comes to drug law enforcement, the “money” is in their budgets which are driven by statistics (stats).
“12 warrants”… “three felony arrest warrants”… “destruction of 500 marijuana plants”. Numbers which show the Sheriff’s Office is on the job, justifying their budget. Fighting the good fight against drugs. But to recognize why those numbers are meaningless, other than as raw stats, you need their context. And for context you must first understand the basics of our criminal justice system. The long running TV show ‘Law and Order” is silly and rarely reflective of reality, but its basic premise is accurate:
“In the criminal justice system the people are represented to two separate but equally important groups. The police who investigate crime, and the District Attorneys who prosecute the offenders.” DUN! DUN!
Police may arrest someone, but after a case is ‘closed by arrest’ they have no legal input into what happens next — other than to show up and testify (which is critical) if the case goes to trial. That’s not to diminish the important and vital role of police, it’s just a legal fact of life in our system.
If police have any input at all into the decisions prosecutors make, it’s only because the prosecutor’s office decides to ask them for input. In my former office, for instance, there were certain types of cases we would not plea bargain unless the officers involved were on board with the plea deal.
We weren’t legally required to do so, and on rare occasions, for legal reasons, we went ahead with pleas without the agreement of the officer. But we tried to get their agreement because we are both on the same team.
The fact – that after police make an arrest, they have no legal input into what happens to their cases — is why law enforcement have become dependant on raw stats to quantitatively assess their own performance, rather than qualitatively based on the ultimate outcome of cases.
With that in mind, let’s look at those three stats from the quoted news article in the context of their legal value.
“12 warrants”… Presumably they are referring to search (rather than arrest) warrants, otherwise it makes no sense. Under both the Fourth Amendment to the United States Constitution, and the Colorado Constitution and statutes, the purpose of a search warrant is to “gather evidence of a crime”— evidence being the operative word.
The Anglo-American criminal justice system is centered not on the investigation or arrest — which you’d never know from watching cop shows on TV — but around the jury trial. A group of “good and true” citizens decide if one of their fellow citizens has violated the law. Unless the citizens on the jury — not police or prosecutors (both of whom are agents of the government) — find the accused guilty, all the public resources expended investigating, and arresting, are for naught.
If a law enforcement agency tells me they executed “12 warrants”, the first question I ask is, “Out of those 12 warrants, how much evidence did you obtain that I can actually use in court?” With drug cases, it’s often very little. So what actually matters to the functioning of our criminal justice system is the quality of the evidence obtained by search warrants, not the number of them.
But in drug enforcement, what matters is that they “managed to obtain 12 warrants”. That’s a stat which can be used to justify their use of public resources — and it makes a good headline. What usable evidence those warrants obtained is ultimately beyond their control — and thus irrelevant to them.
A similar analysis can be applied to the “three felony arrest warrants”. “Okay,” I might ask, “were any, or all of those arrested actually charged by the prosecutors?”
If not, what is achieved by the arrest — other than getting arrest stats, and headlines, for the agency?
Prosecutors are not legally bound to file charges at all, and if they do charge, are not required to file the charges for which the citizens was arrested by police. Regardless of the prosecutor’s decision, the officer and the agency still get “an arrest stat”. Which is what really matters at budget time.
So for agencies involved in drug enforcement, what happens after an arrest is irrelevant to how they evaluate their own performance. Their standard of evaluation is what they can control: the number of arrests. “Case closed by arrest” becomes the measure of success, and desirable stat, not the ultimate outcome of the prosecution, or if it’s prosecuted at all.
For nearly five years, I worked with a joint county/DEA drug task force, so I know how the game is played. My job performance was not related to our number of search warrants served and arrests made… but the performances of the officers, and the task force itself, were based entirely on those stats.
Our focus was on upper level cocaine traffickers, which — in that era in Florida — was a full-time endeavor. We ordinarily didn’t even bother with weed, because there was so much cocaine being moved through our county. But if the officers needed to pad their stats, they’d bust a few pot dealers.
That experience taught me the way the “drug war” was, and still is, being “fought” is futile — if the objective is reduction of the availability of illicit drugs. If, however, the objective is to sustain budgets based on stats, then it’s a glowing success.
I once suggested in a statewide drug enforcement meeting of police and prosecutors that, to more accurately judge how well police agencies were performing, their budgets should not be based on simple numbers of arrests, but on how many of those arrests resulted in successful prosecution. That would be the truly accurate way of evaluating the quality (as opposed to quantity) of their evidence gathering.
Whoa! You’d have thought I insulted those police officers’ mothers. They were outraged at the thought their work should be judged on whether the quality of it accomplished the ultimate goal of our criminal justice system: conviction by a jury. All the other prosecutors, quietly nodded in agreement with me.
So, what Daily Post readers need to understand is that the “pot busts” may have nothing to do with marijuana itself. It’s about the stats they generate, however meaningless their actual effect in the legal system.
The weed is just a means to an end at budget time. And, just like the predicted number of jail inmates justifying a larger jail, politicians everywhere who decide law enforcement budgets swallow the stats “hook line and sinker” every time.
Gary Beatty lives between Florida and Pagosa Springs. He retired after 30 years as a prosecutor for the State of Florida, has a doctorate in law, is Board Certified in Criminal Trial law by the Florida Supreme Court, and is now a law professor.