14 minute read
The war on drugs may have chilled, but there's still sectarian violence
The war on drugs may have chilled, but there's still sectarian violence
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Story by Thomas White, Illustrations by Jasmine Ye
Donte West pulled up to the wrong house, at the wrong time, in the wrong state. As a result, he nearly died in prison for a marijuana charge.
In 2016, at just 23 years old, West took on the role of caretaker to his grandmother and two younger brothers in his native California. He dreamed of higher education but didn’t think it could be a reality for him given his finances and living situation. Still, his grandma encouraged him to pursue his college ambitions.
The Elegy of Donte West
West says he was traveling to visit universities when he was arrested in Manhattan, Kansas. Twenty miles outside the college town, West was a passenger in a Hyundai pulled over in Junction City, Kansas. Police assumed the vehicle was a decoy car for drug distribution—on the highway the Hyundai was near a Lexus that they suspected contained drugs. During the police stop of the Hyundai, an officer saw a phone’s navigation app open with a Manhattan address.
Later, the Hyundai pulled up to an apartment in Manhattan. Twenty minutes later, the Lexus showed up. A plain-clothes Riley County Lieutenant Officer in an unmarked police car was waiting for them ever since he’d been tipped off by the officer that pulled the Hyundai over in Junction City. Police arrested everyone at the apartment.
The Lexus contained large amounts of marijuana and meth, while the Hyundai had only trace amounts of cannabis.
Everyone but West took a plea deal. West believed in his innocence and assumed that a fair trial would exonerate him. He had no prior record and felt he did nothing wrong. West faced four felony charges: conspiracy to distribute marijuana, large possession of marijuana with intent to distribute, conspiracy to distribute methamphetamine, and possession of methamphetamine with intent to distribute.
While awaiting trial, West couldn’t take care of his family. His beloved grandmother passed away, leading to his two younger brothers getting placed in foster care: a jarring example of the cruel collateral damage in the War on Drugs.
At trial, authorities coerced the apartment owner to say—without evidence— that West had sold him a pound of weed a week prior. Police testified that West was searched and found in possession of a flip phone, the type which is often used as a burner phone for drug distribution.
Based on the apartment owner’s testimony, police testimony, and the flip phone (despite no evidence of drug activity on the phone) West was found guilty.
West was sentenced to seven years and eight months in state prison, longer than anyone else arrested at the apartment, including three who fled the scene. The driver of the Lexus—with large amounts of both marijuana and meth—was sentenced to six years.
West appealed, saying his lawyer in the initial trial didn’t depose the other four men at the apartment—all of whom testified that West did not know about the drugs. The owner of the Lexus went as far to say that he and the Hyundai were on separate trips and that at no point did West know what was in the Lexus. Nonetheless, West’s first appeal failed.
During West’s imprisonment at Lansing Correctional Facility, the pandemic began and quickly swept through the incarcerated population. With Draconian COVID-19 policies, like no access to sanitizer due to a fear that the inmates would use it to get drunk, West went to extremes to avoid catching the virus. Ultimately, he was infected.
“I felt as if I was sentenced to death for a first-time marijuana offense,” says West. “I recovered, but five prisoners and two guards that were in the same facility died from COVID.”
In Sept. 2019, West’s new lawyer, Chris Biggs, filed a writ of habeas corpus petition, which brought the truth of the case to a judge’s attention. The apartment owner who testified against West had flipped and provided testimony to save his own ass; the jury didn’t know that. They didn’t know that because police specifically testified that the apartment owner wasn’t an informant cooperating in the investigation.
Given that the apartment owner wasn’t charged with anything, despite admitting to buying large amounts of marijuana and other crimes, the judge ruled that police had “inadvertently” misled the jury by concealing a cooperation agreement with the apartment owner. Since this violated West’s constitutional rights, his sentence was vacated and he was free in Oct. 2021—after spending more than five years behind bars.
In a tale as old as time, West is Black while the apartment owner is white. One faced harsh consequences, while the other was left free.
Cash Rules Everything Around Me
In the world surrounding a single small plant, the system sees green while regular people see the inside of a jail cell.
In 2018, while West was in prison in Kansas for allegedly selling a pound of weed, Missouri legalized medical marijuana. The mainstream coverage and conversation around the decision celebrated the billions of dollars in taxable income for the state that this growing industry offered.
“What was criminal in Kansas is entrepreneurial in Missouri,” says West.
As of February 2022, Missouri boasts over $268 million in cumulative medical marijuana revenue. The state has a special 4% tax on ganja, resulting in nearly $11 million in taxes collected, not counting sales tax.
Jan. 8, 2022, in a moment that must have been surreal, West cut the ribbon for From the Earth located at 6200 Troost—one of the first medical marijuana dispensaries in Kansas City.
In 2022, we are living through something of a cannabis renaissance: 17 states and D.C. have fully legalized, 37 states have medical marijuana, and more ballot measures are planned for November. Even Kansas saw the success of its neighbors—Missouri’s 161,032 medical MJ patients and Colorado’s $12 billion in reefer revenue—and has started to develop legislation that would allow medical marijuana.
But, of course, conservative Kansas would do it weirdly.
A proposed bill in the Kansas Senate would legalize medical marijuana for 20 conditions but make it illegal to smoke or vape cannabis—even for patients. Those with valid licenses would be able to partake in edibles, salves, patches, and oils. Kansas is one of only two states that have no access to marijuana, medical or otherwise, so any progress is welcome for cannabis advocates.
High in the Air, KC-MO
In Kansas City, Missouri, prosecutor Jean Peters Baker says she will not prosecute low-level marijuana offenses. But the results of this shift in priorities have been mixed. Baker declared a de-prioritization of cannabis offenses in late 2018, but since then, the KCPD has still arrested nearly 600 people for simple marijuana possession.
KC is not alone. Nationally, there were more marijuana arrests in 2018 than for all violent crimes combined. The same year saw nearly 16,000 marijuana arrests across Missouri, which accounts for more than half of all drug arrests in the state, the overwhelming number of which are for smallscale possession.
Public Defense Attorney Jeff Esparza notes that three months after Baker pledged not to prosecute possession of minute amounts of marijuana, he saw a small possession guilty plea in a court roll.
“We have a faux-progressive prosecutor who says she doesn’t care about weed,” says Esparza. “But she also doesn’t care if KCPD arrests people for it, she doesn’t care if police use it for probable cause to search people, and she sure doesn’t mind revoking probation or parole for it.”
Esparza says that while Jackson County has not outright put people in jail for possessing small amounts of pot, they often put people on probation, which is a privatized hellscape often leading to imprisonment, or at least an unending cycle of recidivism.
“Roughly 60% of people fuck up on probation,” says Esparza. “Then they get a shock sentence, usually four months in jail, then come out and start probation all over again.”
[Editor’s Note: Opinions expressed by Jeff Esparza are his own and not the view of the public defender’s office.]
From Probation to Prison for Paper
Misdemeanor probation in Missouri is privatized and fully paid for by the person on probation. Missouri law says that probation can only cost $50 a month, but private companies have found workarounds to suit their profit motive. That spells bad news and more debt for the 43,000 on probation and 17,000 on parole in the state.
Private misdemeanor probation companies have no state oversight in Missouri. The result is that probationers have more hoops to jump through, and companies will make all attempts to lengthen probation.
Under misdemeanor probation, drug tests are administered bi-weekly and run $20 a pop. Offenders take classes at $50 a session and pay for their own ankle monitors, even if these devices have dubious relevance to recovery in the first place. One man on probation told a 2022 academic study* that he paid $800 above standard costs for an unrelated series of anger management classes and drug tests in Missouri.
Violation of the terms of parole or probation can be as minute as not having enough money to pay for drug tests and ankle monitors or missing a required class or meeting, which, in effect. criminalizes poverty.
“I’m a public defender, so my average client lives off of $500 a month,” says Esparza. “People in those circumstances have had a few things not go their way. On probation, everything must go right and line up or it’s jail, so jail is what often happens.”
To make matters worse, the private probation companies receive payment from the state for reporting non-compliance, meaning these companies are financially incentivized with bonuses to ensure the failure of probation completion.
The state of affairs led one Missouri attorney to tell the authors of a 2022 academic study looking at probation in the state* that it’s clearly better to be on felony probation rather than misdemeanor probation because felony probation is state-run and structurally incentivized to have the offender finish and stay out of prison.
Heinously Harsh Felony Cannabis Charges
In Missouri, felony possession of marijuana is any amount over 35 grams. For perspective, a felony amount of marijuana weighs less than the amount of ranch you’ve been putting on your side salad. A medical marijuana patient in Missouri can legally purchase three times the felony possession amount every month their card is valid.
Esparza says those with felony possession charges are often awarded the same sentence as aggravated rape, robbery, and attempted murder while a person is in the home. If the individual had any prior record, large-scale cannabis possession carries the same sentence as raping someone under 14 years old. It’s worth reiterating: these sentences are for having 1.24 ounces of a dried plant.
Those convicted of a felony can’t vote while serving their sentence or parole, own a gun, or live near certain schools and churches. Further, a felony makes individuals ineligible for student loans and any job or apartment that conducts a thorough background check.
Sometimes the felony charge alone can be enough to ruin someone’s life. If arrested for cannabis possession—or anything for that matter—you can be strip-searched and held without bond for up to 48 hours while waiting to see a judge.
“If you’re held for two days in jail, you can lose your job, then finding a new one is near impossible given your pending felony,” says Esparza. “You can’t get a job; you can’t get an apartment, and that’s just with a charge. You could be innocent, but it takes a year and a half to two years to get that charge cleared.”
Innocent until proven guilty only applies to the courts. The opinions of the public, potential employers, and housing agents aren’t bound to the same rules.
Drug Court Reforms
It’s not all abysmal. Esparza says the drug courts in Jackson County could be considered nation-leading.
Those with no prior offenses may get assigned to drug court at their prosecutor’s discretion. Once in drug court, defendants must test clean for six months and attend classes. Upon completion, the drug charge is wiped completely clean from their record. Unlike probation, the drug court’s focus is rehabilitation, and addiction treatment is available free of charge to the individual.
“For a lot of people, getting arrested and sent to drug court is the only way they can afford treatment,” says Esparza.
This system is considered nation-leading but still requires getting arrested before drug treatment is accessible and affordable, which says nothing good about our country or its stance on addiction.
Since being released from prison, West has been working with the Last Prisoner Project—a nonprofit which seeks to get all non-violent marijuana offenders out of the incarceration system—as a Legacy Fellow. His current project is to raise enough money to fund a drug court in Riley County, Kansas, where he was initially arrested. The hope is to establish a system that mirrors the success of the Jackson County, Missouri, drug court model. County officials are currently undertaking a thorough assessment to determine the cost.
As you read this, there are 40,000 non-violent marijuana offenders imprisoned nationwide. In Missouri, non-violent marijuana offenders represent 200 out of 5,100 people behind bars.
Because Structural Racism
“Whether you are jailed or arrested for weed comes down to geography and race,” says Esparza.
Metric after metric illustrates that the judicial system and policing writ large is subject to inherent racial bias resulting in marijuana enforcement being used as a tool for police to target and disrupt communities of color despite the relaxing of laws. Sadly, West’s story is not unique.
In Jackson County, a Black person is 4.5 times more likely to be arrested for marijuana than their white counterparts. It’s worse in Saline, Lafayette, Lincoln, and Johnson Counties on the Missouri side; Black people are 10 times more likely to be arrested for possession. In Johnson County, Kansas, Black people are 8.4 times more likely.
Esparza says that the smell of marijuana, let alone the presence, is used to conduct probable cause searches.
“They have a drug dog or even just say they smell weed to find any infraction to get you in trouble,” says Esparza. “Probable cause hearings are a sham; the police can give just about any reason. Then, if you had an expired tag, no insurance card, any priors, a warrant, anything, you’re getting arrested.”
Missouri processes 128,000 people through their jail system a year, and a disproportionate number are people of color and/or marijuana offenders.
The War on Drugs is not and has never been about personal safety. A key figure in President Nixon’s administration admitted that this all began as a way for drug enforcement to be wielded like a cudgel to disrupt communities of color and leftists by way of imprisonment. Over 50 years later, the original systematic sin of racist marijuana enforcement remains.
When asked how the system should change, Public Defender Esparza put it curtly:
“We should immediately expunge all non-violent marijuana convictions.”
He says we should also make it illegal to search and/or seize a person for suspicion of possessing marijuana, with exceptions for driving while intoxicated and other limited situations.
“Under the code of law going forward, we should treat marijuana the same as alcohol,” says Esparza.
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*The 2022 academic study referenced in “From Probation to Prison for Paper” is entitled “Private Probation Costs, Compliance, and the Proportionality of Punishment: Evidence from Georgia and Missouri” from The Russell Sage Foundation Journal of the Social Sciences.
