Administratively Choosing the Drug Criminal: Police Discretion in the Enforcement of Drug Laws

For further exposition of this theoretical perspective see Erickson K. , “Notes on the Sociology of Deviance,” in The Other Side, Becker H. S. , ed., New York: The Free Press, 1964, pp. 9–21.

See: Lindesmith A. , The Addict and the Law, New York: Random House, 1965, Ch. 1.

Joint Committee of the American Bar and the American Medical Association on Narcotic Drugs, Drug Addiction: Crime or Disease? Bloomington: Indiana University Press, 1961.

The concept of a “moral crusade” as used here is that described by Becker H. in Outsiders New York: Free Press, 1963, p. 147. It refers to the reformistic zeal of persons who create rules to suppress conduct they regard as unqualifiedly evil. For analyses of the criminalization of the drug problem in terms of moral crusades, see Becker , op. cit., Ch. 4;. and also Gusfield J. , “On Legislating Morals: The Symbolic Process of Designating Deviance,” 56 Calif. L. Rev., Jan. 1968, p. 54–73.

One indicator is the defeat of the referendum to legalize marihuana in California. Another is the poor reception similar efforts have received around the country from politicians at various levels of government.

LaFave W. , “Police Discretion,” in Crime and Justice in Society, Quinney R. , ed., Boston: Little, Brown, 1969, p. 120.

Ibid., p. 122.

Ibid., p. 123.

See: Parnas R. , “The Police Response to the Domestic Disturbance,” Wis. L. Rev., Fall, 1967, pp. 914–960.

LaFave , op. cit., p. 124.

Wilson James Q. , Varieties of Police Behavior, Cambridge: Harvard University Press, 1968, p. 181.

“Every governmental and legal system in world history has involved both rules and discretion. No government has ever been a government of laws and not of men in the sense of eliminating all discretionary power. Every government has always been a government of laws and men.” Discretionary Justice, Baton Rouge: Louisiana State University Press, 1969, p. 17.

Ibid., pp. 222–223.

Chambliss W. Seidman R. , Law, Order and Power. Reading, Massachusetts: Addison Wesley, 1971, p. 388.

Davis , op. cit.

President's Commission on Law Enforcement and Administration, “Law Enforcement Policy,” Task Force Report: The Police, Washington, D.C.: Government Printing Office, 1967, Ch. 2, Hereinafter this Commission shall be referred to as the “President's Crime Commission,” and this report shall be cited as “The Police.”

American Bar Association, “Law Enforcement Policy Making,” Standards Relating to the Urban Police Function (tentative draft) (Chicago: Author, 1972), Part IV, Hereinafter, “ABA Police Standards.”

The Police, p. 21.

“Encouragement” refers to the police practice of providing an opportunity for a suspected offender to commit a crime in a manner that will make evidence of his offense available to the police. This is particularly relevant to drug law enforcement where police agents often try to get suspected drug pushers to sell them drugs.

The Police, p. 24.

ABA Police Standards, p. 134.

Code D.C. §4–136.

Carroll V. Parry , 48 App. D.C. 453 (1919). Emphasis added.

Code D.C. , 40143. It is noteworthy that this provision was revised in 1968 to allow the police to deal with an individual in accordance with section 24-524(b) without being considered in violation of the duty to arrest. This section provides for the noncriminal handling of drunks. The significance here is that the matter of police discretion has recently been before the Congress not to alter its original denial of discretion to the police.

See Keith S. Payne R. L. Walker T. J. v. United States, D.C. App. 1967, 232A.2d 92.

When court decisions bearing on MPD's activities are handed down or new legislation passed, MPD will issue a memorandum or a General Order to the force explaining the new law and how MPD will in future conduct police work to conform to its requirements. These General Orders or memoranda will usually later be incorporated in a training manual.

Series 101, #10, General Orders, Metropolitan Police Dept., District of Columbia. (Hereinafter cited as MPD Orders.)

Series 307, #1, MPD Orders.

Series 307, #2, MPD Orders. This law has been on the books for several years but goes unenforced because of the treatment center's open-door policy. If it were a way of locking up addicts, it might be used more frequently.

Series 602, #1, MPD Orders. “Substantial” is not defined.

Series 101, #10, MPD Orders. Emphasis added.

Series 307, #1, MPD Orders. Emphasis added. The order recognizes that an officer may be unable to complete action on a given case and provides a procedure for such a contingency. But this, of course, is not the same as authorizing him to ignore certain complaints and pursue others.

The order specifically defines “drug user” as “any person … who uses any habit-forming narcotic drugs so as to endanger the public morals, health, safety, or welfare or who is so far addicted to the use of such habit-forming narcotic drugs as to have lost the power of self-control with reference to his addiction, except a person using such narcotic drug as a result of sickness … furnished … in good faith … by a physician.”

The granting of leniency to offenders in exchange for information leading to the conviction of other criminals has a legislative history older than the history of organized police agencies. Under 14 major statutes enacted late in the 17th and during the 18th Century in England, an offender could obtain a pardon by securing the conviction of one or more accomplices in the crime. The promise of a pardon was used to induce robbers, thieves, embezzlers, and murderers to betray their accomplices and to spy upon their companions. See: Leon Radzinowicz, A History of English Criminal Law and Its Administration from 1750, London: Stevens and Sons, 1956, Vol. II, p. 40.

Technically, the police in the District of Columbia do not charge the defendant. This is a prosecutorial function. However, for all intents and purposes, the police do determine the charge for certain offenders.

MPD's Chief has been conducting revision and improvement efforts of his General Orders and is requiring that the force pay them greater heed. Although we are unaware of any pending changes in the status of the General Orders regarding drug enforcement, it is conceivable that some of what we are now calling de facto policies may eventually be made explicit and entered in the General Orders.

The Source of this decision to concentrate the Department's special resources on heroin is not entirely clear. The commanding officer of the Narcotics Branch explained that he has taken his direction from the public statements of the Chief in which heroin was cited as the target of a major crackdown. This emphasis happens to coincide with the prevailing emphasis of the federal government's anti-drug efforts. MPD's recent shift in manpower from heroin to amphetamine investigations, however, was initiated by the Branch's commander. The decision was then reported to and approved by his superior officers.

With no prior convictions the maximum penalty for distribution under CSA is fifteen years or $25,000 as opposed to one year or $1,000 for distribution with no prior convictions under UNA and the penalties for possession with no prior convictions under both CSA (one year or $5,000) and UNA (one year or $1,000).

If the value of the drug found in the search is in excess of $150, a distribution charge might be made.

This criticism by the police is especially noteworthy for other than the obvious reasons. Many police when presented with the recommendation that they develop policies and establish criteria for deciding how to handle different types of violators of the same law, object that is not possible to establish such criteria. Yet, here is an example of the police out-lawyering the lawyers for being about to set down several criteria that could be used in just such a policy.

Lindesmith reported that some police pay informants with drugs with the tacit approval of their superiors. op. cit., p. 51. We found no indication of this practice among MPD's Narcotics Branch officers. However, we can not certify that it does not occur.

There are concessions a uniform patrolman can make, however, which become negotiable and give him some limited buying power if he wants it. He can overlook certain activities or simply not engage in “constant surveillance” of certain persons who would ordinarily expect “harassment.”

An amount of heroin worth five dollars on the street.

Skolnick J. , Justice Without Trial New York: John Wiley, 1967, p. 130.