Chris Hayes isn't alone: I also should've been busted for pot

Twice I was caught redhanded. Both times I got off scot-free. Was I just lucky — or was something else at work?

Published January 13, 2014 12:43PM (EST)

Chris Hayes                (MSNBC)
Chris Hayes (MSNBC)

In a more fair and equitable world, a world where laws were applied evenly and where justice was truly blind, either millions of men and women (primarily poor minorities) wouldn't be in prison for low-level drug offenses, or I'd be right in there with them. In a version of America where the law was not applied in a racist, discriminatory fashion, my stupidity would have put me in prison.

But first, a bit of background: Two weeks back, old-media hacks Ruth Marcus and David Brooks unleashed a pair of very similar (and, consequently, weak) arguments against the growing acceptance of full marijuana legalization in America. These arguments are deeply flawed, and have been criticized from a number of angles, so I won't bother critiquing them too much here. At their worst, they fail even to mention the devastating consequences of the "War on Drugs" -- what "The Wire" creator David Simon has called, "a holocaust in slow-motion."

In an excellent response to the Marcus and Brooks pieces, Slate writer David Weigel notes that the primary risk posed by using marijuana isn't its "first-order danger," i.e. physical and mental health risks (which are minimal), but rather its racist, classist enforcement. On his MSNBC show, Chris Hayes went even further, providing an extremely personal account of the time he narrowly avoided criminal drug charges. Hayes should be applauded for his public admission, but why was it important that he come clean in the first place? Does anyone really doubt that our drug war is abjectly racist in its application? In most of America, if you're white and well-educated, there is no drug war!

I should know. Much like Chris Hayes, I've avoided serious drug charges because I'm white. Unlike Hayes, I've managed to do it twice. My vocabulary, my diction, my funny-sounding voice, and, yes, my whiteness have each helped to shield me from the consequences of my reckless, stupid behavior. Why was I so reckless? Because I've never considered smoking weed to be risky behavior. I'm not the kind of person our justice system tends to focus on when looking to make drug arrests, and while this is reprehensible, it's also supremely dishonest to pretend like it isn't true.

The first time it happened, I was attending college in Boston. It was a winter's night like any other, and I'd driven to a parking lot in Dorchester -- a poor neighborhood of Boston -- with two white friends to fishbowl my beat-up Pontiac two-door. We'd gone to the parking lot of a rundown beach in this sketchy part of town to smoke a couple of bowls before heading to a nearby 24-hour bowling alley. (We didn't want to smoke in the bowling alley's parking lot because it was frequently patrolled by police, a bit of irony we could enjoy later.) Sitting in the car, getting high as all hell and filling the small interior with our pungent smoke, we watched in disbelief as a pristine white Camaro slid into the beach parking lot and drove past us. It was strange -- who else would be coming here at this hour? -- but we weren't particularly concerned about the car. It wasn't a squad car, after all. Still, one of my friends told the other to put the pipe on the floor in the backseat for a minute. Mild, weed-induced paranoia had suddenly taken over.

Seconds later, the Camaro reappeared, quickly pulling up beside us. In what seemed like slow motion (I was really high) a police officer unfolded himself from the car and approached, banging his fist heavily on my driver's-side window. I cranked it down reluctantly as he shined his flashlight at me through the slowly-opening glass. I'll never forget that moment, when a cloud of pot smoke billowed out of my car's half-opened window and into his humorless face.

He asked us what the smoke was (as if he didn't know). We insisted we'd been smoking cigarettes.

With the windows up? Yes officer, we quickly explained, it's cold outside. He flashed the light through the car, miraculously (or perhaps intentionally) not seeing the glass pipe sitting plainly on the floor of the backseat. Then he instructed me to get out.

Standing in the cold, flashlight in my eyes, the cop unleashed a barrage of questions: Had we been smoking pot? No. Was there any pot in the car? No. Was there any paraphernalia? No. If he brought the drug dogs, would they find anything? No. Not even any seeds or stems? No.

I'd always been counseled to tell the cops nothing, and I followed that piece of advice dutifully as he attempted to get me to incriminate myself. Mostly, he was just confused. What, he must have wondered, were three white kids from the suburbs doing getting high in a Dorchester beach parking lot? When he finally bothered to ask us, we did what any rational person would do: we lied. We said our friend was meeting us, that she needed to walk her pit bull, and that it had a mean streak -- she just wanted to walk it somewhere it wouldn't cause any trouble. It was dangerous on the beach at night, we reminded the incredulous cop, and we were going to keep her company.

It was a ridiculous story, born of half-truths and exaggerations, but we stuck to it and, exasperated, the police officer eventually lost interest in these seemingly harmless white kids. He told us that our friend needed to "walk her dog somewhere else," and we needed to leave. And then he got back in his Camaro and drove off. Simple as that.

Nervous, adrenaline-filled laughter overtook the three of us when we got back to my friend's house and smoked (again) in her bedroom, trying to tame our nerves. How, we asked each other, had we just gotten away with that? At the time, I don't think we even considered that our immense "luck" wasn't really luck at all, but evidence of a criminal justice system blind only to its own hypocrisy.

If that had been the only time I miraculously avoided arrest, I might still attribute the whole thing to dumb luck. But the next time, I was caught red-handed, dead to rights. There was plenty of evidence to bury me with, and yet I still got off scot-free. How?

A few years after the incident in the parking lot, not long before Massachusetts decriminalized possession, I was driving a friend's car in western Mass. sporting a busted headlight. I'd borrowed his vehicle to take a quick trip to a local bookstore, not considering the fact that he had been driving around with a busted headlight for more than a week, collecting a handful of warnings from a litany of bemused cops.

Having recently graduated college, I was living on some friends' couches while I saved money to rent my own place. Wherever I went, I brought a backpack with me, where I kept my most precious worldly possessions: the money I'd saved from waiting tables (about a thousand dollars) and a sizable stash of marijuana, which I used both recreationally and as a way to thank friends for letting me stay over. I had about a half-ounce in four separate bags, stinking up the bottom of my grey backpack. I also had a little bit more, my "personal stash," in a bag in my pants pocket. I wasn't high that night, and honestly, I wasn't even thinking about the pot in my bag or in my pocket. Even when I heard the siren and saw the flashing lights signaling me to pull over, I still wasn't particularly concerned. It's not like I was stoned or anything. But as the cop approached the car, I reached across to the passenger side to get the registration from the glove box, and the cop thought my sudden movements looked suspicious. When he sidled up to the car, he immediately asked me what I'd been doing. Was I trying to hide something? I rushed to explain that, no, I was only getting out my registration, but it was already too late. His flashlight had revealed a small plastic bag sticking out of my jeans.

He instructed me to empty my pockets.

I tried to avoid showing him the weed, bringing other things out instead ("You mean these keys? You mean this pen?") but when he continued to press, I realized there was nothing to be done. I emptied my pockets, and a few minutes later I was sitting handcuffed on the side of the highway as he searched my friend's car. I was already starting to freak out a little bit, fully aware of what he was about to find. The officer, genial from the start, tried to allay my fears, assuring me that possession of a small bag of weed wouldn't get me into too much trouble. Searching the rest of the car was simply a formality. Of course, I wasn't freaking out about the small bag of weed he'd already found, I was freaking out about the deeply-incriminating stash of drugs and money that he was about to find. It wasn't going to look good. The fact that I hadn't actually been selling drugs was one thing. What this police officer was likely to assume was something else entirely.

Minutes later, stash discovered, I was cuffed in the back of his squad car, and he was asking if there was anything else that he might find in the car. When I refused to incriminate myself, he patiently explained that they were going to search the car anyway, and I should just fess up now as a gesture of good faith. I honestly didn't have anything else, and so I reluctantly told him as much. We headed back to the station.

When we got there, a boyish state cop greeted me incredulously. "You're like a ghost," he told me. "You basically don't exist." These state police officers simply couldn't believe that someone like me -- someone who by all appearances seemed to be selling weed -- had no criminal record whatsoever. And if that cop on the beach in Dorchester had simply taken the time to write an incident report, the whole course of my life might have changed at that very moment. Instead, to these cops (and in the eyes of the law) I was perfectly innocent, and that meant they had to think very carefully about how they wanted to charge me.

The weed they found was in separate bags, and that surely looked bad, but I had a simple explanation: that's how I'd bought it. With the cash, it was the same story -- it didn't look good, but I had a reasonable explanation and I assured them I could provide pay stubs if needed. Still, I easily could have been charged with possession with the intent to distribute and a litany of other very serious crimes if I'd just been rude, or uncooperative, or if I didn't sound like the kind of person with parents who might be able to afford a good lawyer, and especially if I wasn't white.

But that's not what happened.

Instead, after keeping me in holding for a few hours, they brought just one charge: possession of a Class D substance. For first offenders in Massachusetts, that meant entering a conditional "not guilty" plea, with all charges to be dropped (and legally expunged) upon the completion of a drug and alcohol awareness course that consisted of a handful of two-hour classes and a two-page paper. They even gave me my money back.

I am extremely fortunate, and I know it. I'm fortunate that I was arrested by polite and decent cops and that I lived in a liberal town in a liberal state. But how much of that incredible "good fortune" isn't really good fortune at all, but rather the byproduct of the pervasive social advantage that being white provides, particularly when confronting authority figures? Do white cops let black kids in poor neighborhoods off the hook for minor drug offenses? It must happen sometimes, but how frequently? Black people are four times as likely to be prosecuted on marijuana-related drug charges as white people, despite the fact that both groups smoke weed with the same frequency. Why?

Maybe I just lucked out, arrested by the nicest, most trustworthy police officers you could ever hope to find. We'll never really know. And yet, tellingly, never in my life has a cop treated me poorly. Is there any chance that would still be true if I weren't white? If cops saw me as anything but harmless? I'm not particularly proud of my stupid behavior, but I surely don't feel like I did anything criminal. I can't imagine what would have been accomplished by subjecting me to a court case, prison time and a criminal record that would haunt me for the rest of my life. I'm not a menace to society, and my actions didn't cause some irreparable harm. Unfortunately, the same could be said for millions of those unfortunate Americans who have been put through our awful criminal justice system, never given the benefit of the doubt the way that I was.

Do you want to end the War on Drugs? The first step is to reform our justice system so that it treats all Americans with the same compassion and empathy that I've experienced as a young white man.

By Tim Donovan

Tim Donovan is a freelance writer who's work has appeared in various publications including VICE, Al-Jazeera America, AlterNet, and Mic. He lives in Queens, New York. Follow him on Twitter at @tadonovan.

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