Legal Commentary

Human Rights Watch recently reported that the depressing old story that African Americans are disproportionately drug defendants remains true. (News story here.)  One reason may be political;  drug search warrants of wealthier, whiter neighborhoods have a higher success rate (see Lawrence Benner, Racial Disparity in Narcotics Search Warrants, 6 Journal of Gender, Race and Justice 193 (2002)) suggesting that the standards are higher to search there.  The police understandably avoid making mistakes with people having the power to retaliate: "If you search the King, the King must be holding."

There are, I am willing to bet, active drug networks at Andover and Spence, at Williams and Harvard, but generally, they are let alone unless they go out of their way to attract police attention.  That's why the recent DEA drug investigation and raid at San Diego State University is so interesting. 

Leaving affluent kids alone is, I think, essential to the political stability of the War on Drugs.  Why don't headmasters and deans at elite schools beg for the services of undercover narcotics investigators, who could develop solid cases against young dealers for multiple felonies and then pack them off to state prison for double-digit terms (forfeiting their trust funds in the process, of course)?  Would that not delight parents and fellow students would then be protected from these criminals?  My bet is that parents and students would instead say that police have better things to do than arrest good young people for conduct that millions have engaged in, conduct which, at least as to these kids from fine families, warrants rehabilitation and treatment, not punishment.    

This approach was abandoned at SDSU, where 75 students were arrested and charged with serious crimes.  (NPR story here).  So we are given a perfect conflict: Strong cases based on months of investigation of sitting ducks with a complete lack of basic drug dealer professionalism, serious charges that could send these kids to state prison, and affluent defendants whose parents (and I can hear the popping of champagne corks even here in Tucson) are about to confer a substantial windfall (75 defendants!) on the   best criminal defense attorneys in Southern California.

The leadership of SDSU has sown the wind, and now reaps the whirlwind.  What happens next?   Are these kids on the conveyor belt to prison as if they were  ordinary street dealers from the hood?   If so, and maybe even if not, there may well be substantial negative reputational and admissions consequences for SDSU.  "[A]lmost half the nation's 5.4 million full-time college students abuse drugs or alcohol at least once a month." With a 21 year old drinking age and minor-in-possession laws, half of all college students are at legal risk every month, and no law makes them attend SDSU or any other particular college.  Kids considering experimenting with drugs or alcohol are less likely choose SDSU if they have an alternative that does not boast about its exchange program with San Quentin; parents don't want their kids to take drugs, but I don't think most believe that prison should be a first resort should their children make bad choices.   In any event, because prisoners cannot enroll for classes or pay tuition (and drug offenders cannot get financial aid),  encouraging prosecution of the substantial fraction of substance abusing students is, as a practical matter, unlikely to be a workable strategy for higher education.

On the other hand, perhaps traditional arguments about who the dangerous offenders are will prevail, and most of these kids will get diverted and sent to Hazleden.  If so, the police will be furious that they laid their lives on the line--some of the San Diego Scarfaces had guns--for nothing.  Law enforcement will not soon return down that particular road when they can spend their time on cases that will stick.  Equally importantly, if these kids get special treatment, the questionable demographic effects, the apparent selective enforcement, inherent in the War on Drugs will be highlighted once again in the context of a case that made national news.

The unsatisfactory nature of either outcome explains why both universities and law enforcement authorities have regarded this kind of operation as a lose-lose proposition--have a mandatory drug education day instead.  My prediction is that the university-law enforcement partnership for undercover drug investigations is an idea whose time has not come, and the SDSU administration's approach will not be emulated by other institutions of higher learning.