Justice Thomas' masterful dissent in Whole Woman’s Health v. Hellerstedt skewers the Court's arbitrary use of tiers of review.
Many fans of HBO’s acclaimed crime drama The Wire will cite as a favorite moment a scene in which Baltimore drug kingpin Stringer Bell attempts to increase the professionalism of his gang by running its meetings by parliamentary procedure. When one of his soldiers dutifully begins to take minutes in accordance with Robert’s Rules of Order, Stringer, exasperated, shouts “Is you taking notes on a criminal ****ing conspiracy?” The scene exemplifies one of the show’s most lauded attributes: despite the numerous murders under the belts of most of its major drug-dealing characters, the nuance of their portrayals allows for moments of identification and even endearment on the part of the audience. Stringer’s futile attempt to instill order on the gang, however, also exemplifies a central problem with the criminal justice system it depicts: the basic disconnect between the procedural rules courts have developed to manage the relationship between criminality and law enforcement and the raw chaos of crime and policing on the ground.
Adam Gershowitz’s new casebook, The Wire: Crime, Law and Policy, seizes upon this aspect of the show as an opportunity to explore the nexus between the reality of inner-city drug trafficking and the somewhat pyrrhic efforts of law enforcement to control it, all up against the oft out-of-touch constitutional case law developed by the Supreme Court and its state counterparts. Professors of criminal procedure mention to their classes at the outset that most of the trial protections guaranteed by the Sixth Amendment do not apply in the 95% of criminal cases that end in plea bargains. This fact, coupled with the broad range of substantive crimes on the books, and the general reluctance of political actors, including prosecutors, to appear “weak” on crime has resulted in a broad degree of prosecutorial discretion and, consequently, in an increasingly punitive criminal justice system. The Wire does a good job of showing how these forces incentivize some of the law enforcement actors in the system to find ways around the formalistic requirements of constitutional criminal procedure (the show’s title, for example, refers to the wiretap that Lieutenant Daniels’ task force deployed ingeniously to trap drug lord Avon Barksdale—making numerous end runs around the Fourth Amendment in the process). Yet it also gut-wrenchingly dramatizes the costs of drug violence to the communities it dominates, particularly in the fourth season with its focus on Baltimore public school children, and the frustrations and bravery of the police characters who try to end it.
Gershowitz’s book harnesses the complexity and realism of the The Wire into an extended teaching moment, linking the drug-related applications of familiar topics in criminal law, constitutional criminal procedure, and criminology up to their dramatic depictions in the show. The book is organized like a traditional casebook and divided into topical chapters with leading cases, scholarly commentary, and notes. Yet Gershowitz’s commentary thematically binds together the legal and scholarly materials, asking the reader to consider the relationship between the laws on the books, the evidence of the laws on the street, and their respective depictions on The Wire. (Helpfully, he provides timestamps for the specific scenes to which he refers so an engaged reader with a DVD set can watch them as he or she goes along). Even apart from its television-based approach, Gershowitz’s book is somewhat unique in the spectrum of topics it covers: students and lay readers alike will come away understanding more clearly the relationship between substantive criminal law and criminal procedure, topics normally treated in separate classes, or at least with separate casebooks.
Gershowitz starts with subject areas related directly to the drama of the show itself: statistical work on the correlations between education, drug-use and prison, an overview of the statutory and Fourth Amendment regulation of the use of wiretaps, and the Maryland laws defining drug offenses. His specialized focus raises interesting questions not always reached in introductory criminal law courses: what constitutes, for example, “constructive possession,” and is the teenager taking a shift guarding a stash house on the hook for all of it? Can intent to distribute be shown as to an entire bag of a substance when most of it is simply baking soda? He then moves on to the potential disconnect between the bright-line protections of the Fourth and Fifth Amendment case law governing, respectively, searches and seizures and police interrogations. This section of the book reads the most like a traditional casebook on these topics; most readers familiar with criminal procedure will recognize the basic dilemmas illustrated here through The Wire: namely, are the exclusionary remedies the Supreme Court has constructed for these violations—so costly to litigate in the rare cases that make it to trial—actually deterring police misconduct?
The sections on crime policy and policing are the book’s most interesting sections, and those which draw most productively on the show itself. Gershowitz uses the fraught relationship between The Wire’s dedicated yet ambitious Lieutenant Daniels, the statistics-obsessed Baltimore PD command and the politicos at City Hall to explore political economic critiques of William Bratton’s Compstat system. New York’s former Chief of Police introduced the now-widespread approach to controlling crime by studying statistical information about the location of criminal activity; Compstat has been associated both with a historic drop in crime and accusations of increased brutality and fudging of statistics. The examples Gershowitz pulls from The Wire demonstrate how the complex network of political forces can work to create bad incentives even for honest police in pressure-filled situations. He also anchors a discussion of drug policy on one of the show’s most famous episodes: the creation of “Hamsterdam,” a zone of non-enforcement created by Major Bunny Colvin intended to consolidate drug use into a single part of the city. Gershowitz uses the episode to illuminate a collection of readings on the legality of selective enforcement, the prudence of de-criminalization generally, and the potential damage to urban communities of under-enforcement.
Gershowitz ends, appropriately, with a chapter on the influence of the media on the criminal justice system. Using the last season of The Wire, in which Detectives McNulty and Freamon create a fake serial killer to attract media attention and the increased funds to their Department that go along with it, he asks “Are politicians making bad policy and resource decisions because of a fear of simplistic news headlines?” The answer, according to the show’s creator David Simon (himself a former Baltimore Sun reporter) would seem to be yes. Yet in some ways this question raises a similar set of concerns about Gershowitz’s project in this book itself. While fascinating, creative, and in many ways productively re-orienting, the book creates the same temptation as flashy news headlines: the possibility of understanding a complicated—and geographically varied—problem like crime control through the appealing lens of a particular pop cultural artifact. Scholars in the area of cultural memory have explored the relationship between works of fiction about historical traumas and individuals’ perceptions of their own experiences of it. NYU Professor Marita Sturken, for example, has written about how individual veterans’ memories of World War II frequently take on aspects of the collective narratives of the event we experience in film and other areas of culture. In the area of criminal law, media scholars and legal scholars alike have hypothesized a so-called “Law and Order effect,” in which jurors’ expectations for evidentiary proffers have become distorted by the sophisticated modes of proof offered by the New York City District Attorney’s office and NYPD crime labs in the fictitious universe of television.
To the extent that The Wire has a master narrative it is in large part one of hopelessness. The complex interweaving of Baltimore political interests, police hierarchies, and criminal power structures which the show depicts with such nuance seem, at the end of each season and of the series altogether, to lead back to the starting point. Indeed in the notes section at the end of the book’s first chapter Gershowitz asks, referring to the Season One finale, “Do you get the…feeling—that in spite of all the work of Lieutenant Daniels and his unit—everything remains exactly the same as it was at the start of the season?” While the question no doubt cuts to the heart of the tragedy Simon hoped to dramatize in his television show, it is dangerous for a legal casebook to address a fictional narrative—however well-researched or accurate—as though it were a perfect stand-in for reality.
This casebook succeeds as a remarkably multi-dimensional introduction to a large amount of important information and debate about criminal justice, but it could do more to promote discussion of the benefits and dangers of using The Wire itself to start these discussions. Narratives do interact with and shape people’s understandings of crime and the criminal justice system, often in ways more simplistic than we should hope to encourage. The Wire raises questions that it is healthy for more Americans to discuss, and in complex, well-balanced ways. Yet it is nonetheless a coherent artistic product with a master narrative suggesting that these problems may, in fact, be unsolvable. Exploring how this narrative itself has impacted the cultural discourse on criminality may be, perhaps, a separate discussion for another day.