Thursday, April 23, 2009

One Hand Criminalizeth, and the Other Decriminalizeth Away

Two interesting and seemingly unrelated events were reported on the news yesterday. The L.A. Times reported on the oral argument in the school strip search case. Here is the full text of the oral argument, and as can be seen from the Justice's questions, suspicions and the War on Drugs played an important part in the courtroom discussion, as did concerns about the risks of over-the-counter drugs (the search in the case was conducted to find ibuprofen in the 13-year-old's underwear). Two interesting examples from the transcript, which blur the distinction between drugs and pills:

JUSTICE SCALIA: Had it been the case that, as I recall, someone had -- well, students were popping ibuprofen, weren't they?
MR. WRIGHT: Yes, Your Honor.
JUSTICE SCALIA: I guess they might pop aspirin as well. I'm not aware that one gets a high on either one of those.

CHIEF JUSTICE ROBERTS: I'm sorry, your answer to me was they have to take it seriously. My question to you is, what is the administrator supposed to do? He sees a white pill; nobody can tell him what it is. Is he allowed at that point to search the undergarments or not?
MR. O'NEIL: He is not.
CHIEF JUSTICE ROBERTS: Even if it turns out to be -- you know, I don't know, some very deadly drug?
MR. O'NEIL: Mr. Chief Justice, we do not believe that this Court should get in the business of deciding that searches are okay for, for example, heroin, but not okay for cocaine.
CHIEF JUSTICE ROBERTS: That's what you just told us we should do, in answer to Justice Alito's question.
MR. O'NEIL: No, I simply -- the point was simply that if there is some common understanding that a type of contraband is generally secreted in a certain way, and the example is crack, and there is a known understanding that crack can be hidden in that way, that that would be relevant to the totality of the circumstances.
JUSTICE SOUTER: And I don't see why your answer might not be different if, under the Chief Justice's question, he didn't know it was ibuprofen. All he knew was that it was a white pill. He's not a pharmacologist, he doesn't know what's in it. Wouldn't the reasonableness of the -- wouldn't the scope of reasonable search at least potentially be greater for the undifferentiated white pill than for the known ibuprofen?

At the same time, the SF Chron reports that, due to budgetary constraints, the Contra Costa DA's office will no longer prosecute several misdemeanors.

Kochly wrote that he had long taken pride in saying that his office could do "more with less."

"Unfortunately, we have now reached a point where we cannot maintain the status quo," he said. "We will definitely be doing 'less with less' as a prosecution agency."

The changes are needed to help eliminate a $1.9 million budget deficit in the district attorney's office for this fiscal year. By month's end, six deputy district attorneys will be laid off, and 11 more will have to be let go by the end of the year, Kochly said.

Criminal justice policy is made in many sites, on many levels, and by a variety of actors. It is not a well-planned, intentional conspiracy. As David Garland wrote in The Culture of Control, the "history of the present", as he calls it, is characterized mainly by punitive measures, but there are also counterexamples. Note that the counterexample in this case has to do with costs (humonetarianism raising its head once more), and that in the oral argument the Justices are not preoccupied with the issue of costs.

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