November 18th, 2016
Imagine you’re arrested and charged with a drug offense. Threatened with a mandatory minimum, you accept the prosecutor’s plea deal and spend two years locked up, away from your family. When you get out the state takes away your driver’s license, and you struggle to find good work and housing. All because of a small amount of drugs in your pocket.
Now, imagine if the drug-lab chemist who tested the drugs in your case was herself later convicted of crimes, including tainting evidence in tens of thousands of drug cases over her eight years of employment with the state.
You’ve already served time you can never get back, but the conviction is on your record, making your life more difficult in innumerable ways. Even worse, you don’t know that you accepted a plea deal that rested upon tainted evidence.
That’s a bad scenario. But even worse happened to some of the 20,000-plus people whose convictions were tainted by chemist Annie Dookhan’s staggering misconduct during her spell working at Hinton Drug Lab in Boston, Massachusetts from 2003 to 2011.
Some people were deported from the United States: Torn from their families and communities, they are banned from ever returning. Others are probably still serving time in prison on sentences that were “enhanced” because of Dookhan-tainted prior convictions.
The state’s response to this colossal injustice has been to pin all the blame on Annie Dookhan—refusing to accept responsibility for a system that enabled and covered up her abuse for so long. (In another recent drug-lab scandal in Massachusetts, thousands more cases were impacted by chemist Sonja Farak, who for eight years used the Amherst drug lab as her personal pharmacy.)
Instead, the prosecutors who used Dookhan’s tainted evidence to convict more than 20,000 people of drug crimes—the majority simple possession—say it’s up to each and every one of those people to clear their own record. If they think they deserve a new trial, or want to try to wipe the conviction from their record, the prosecutors argue, they can get a lawyer and go back to court.
The ACLU of Massachusetts and the state public defender’s office, the Committee for Public Counsel Services (CPCS), don’t think that’s right.
In a lawsuit argued November 16 before the Supreme Judicial Court, the civil liberties attorneys and public defenders who are representing the victims asked the court to impose a global remedy: Vacate all the tainted convictions. If the prosecutors think keeping those convictions on people’s records is so important, they argued, they can go back through the list of cases and pick which ones they want to retry. But when the state prosecutes tens of thousands of people on fraudulent evidence, it cannot be the victims’ responsibility to obtain justice.
Besides, even if the public defender’s office thought it was appropriate to relitigate each and every case, it couldn’t do so. The cash-strapped agency is already running on fumes.
The prosecutors’ arguments against vacating the convictions, laid out on Wednesday in their oral arguments to the court, are shocking. In the packed Boston courtroom, members of the community in attendance audibly gasped at some of their more offensive and ludicrous remarks.
Some of their arguments contradict one another. They argue, on the one hand, that the problem has already been adequately addressed—even though tens of thousands of people have not gotten justice. Then they argue, on the other hand, that if the problem hasn’t been adequately addressed, it’s not their responsibility to figure out how to provide justice to the victims.
Other arguments are plain offensive. In their brief to the court, the prosecutors write, “The rights of competent defendants to self-determination—to decide for themselves whether to move to withdraw a guilty plea or seek a new trial—should not be nullified.” As if putting the burden of relitigation on the defendants is the compassionate thing to do.
The prosecutors also argue that even if the drug convictions are tainted, the victims of those tainted convictions may have had other convictions—apparently implying that, because these are “bad people,” their rights don’t matter very much and we should assume they’re guilty of something. Besides being repugnant, this argument is a straw man: No one has asked the court to dismiss any convictions besides the tainted ones.
They further argue that the collateral consequences of the tainted convictions aren’t such a big deal, really, and besides, all criminal convictions have collateral consequences. That’s just the way the system works. It’s fine.
Still more of the prosecutors’ arguments are circular. They say they have provided adequate notice to the victims of their rights to challenge their convictions (they have not), and that any victim who wants to can seek a public defender. But when the overworked and underfunded public defenders’ office balks at the possibility of 20,000 new clients demanding representation, the prosecutors say that they shouldn’t worry about it because not that many people will probably contact them anyway.
In their words: “Placing the responsibility upon individual defendants to come forward respects their having taken responsibility for their actions in the first place, and serves to channel the flow of motions and to avoid the speculative ‘flood’ that [the public defender’s office] has conjured.”
Finally, their arguments fly in the face of basic justice. The prosecutors say that if 20,000 people do contact the public defenders seeking justice—in other words, if the “flood” indeed arrives—the defenders should be able to handle all of those cases eventually, because there is no right to a speedy retrial.
In response to a question from Chief Justice Gants in court this week, the prosecutors argued that if the public defenders’ office doesn’t have the resources to relitigate all of these cases, they should go to the state legislature to ask for more money to fund the litigation.
And what if the state legislature does not provide this funding? Well, that’s not the prosecutors’ problem.
That raised the question of a right to counsel. Chief Justice Gants asked: Do these people even have a right to counsel if they come forward? The prosecutor replied before the court: “I think the Commonwealth disputes that, to an extent. That would depend on the case.”
“If there is a right to counsel but that right to counsel cannot be obtained,” Chief Justice Gants followed up, “what should a judge do?”
“Wait until counsel can be obtained,” was the prosecutor’s response. This, after the attorney representing the public defenders’ office told the court it would take “decades” for his office to relitigate these tens of thousands of cases.
Ultimately, the prosecutors’ underlying theme went something like this: Decent and honest drug warriors at every stage of the system worked hard to arrest, convict and incarcerate these thousands of people, and to monitor them post-release. It wouldn’t be fair to them, or to the system, to wipe away all that hard work.
The Annie Dookhan drug-lab case—all the arguments are now concluded, and we await a verdict—raises a number of interesting legal questions, but it also raises moral, philosophical and policy ones. After sitting and listening to intelligent lawyers on both sides lay out their cases, and hearing the justices pepper them with questions, testing their theories, I’m left wondering: Why are the prosecutors working so hard to “protect” these convictions? Why do they refuse to accept the obvious: that the state wronged these people and it’s up to the state to right that wrong?
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I’m not sure what the answers to these questions are in their minds. But for the rest of us, the drug-lab scandals and the state’s response make ending the War on Drugs all the more urgent.
The case has demonstrated how the whole thing is a house of cards: built on too-often fraudulent evidence, mandatory minimum threats, and coercive plea deals. Zealous drug enforcement is a big part of the reason why approximately 94 percent of state-level criminal cases end in plea agreements, and never go to trial. The justice system more resembles an assembly line than it does a courtroom drama. What you see on Law & Order is fantasy.
From the warrantless surveillance used to track drug suspects, to the street cop who sets up a confidential informant drug buy, to the incarceration of people often locked up for nothing more than their addiction, justice plays little part.
Another question in my mind as I sat watching oral argument was this: Who benefits if the state keeps these convictions on people’s records, or forces them to appeal one by one? It’s difficult to escape the conclusion that the answer is no one except the police-prison-probation complex.
No matter how the court rules, the Annie Dookhan and Sonja Farak drug-lab scandals have piled on more evidence that the drug war is a racket with disastrous consequences for our families and communities—particularly for black and Latino people. It’s long past time we start practicing what we increasingly preach, and treat drug use as a public health issue instead of a crime.
Kade Crockford is the director of the Technology for Liberty Program at the ACLU of Massachusetts. Their work challenging the surveillance state is informed by the fact that the wars on drugs and terror—and the racism that animates them—are the primary drivers of new forms of government spying.