ENDING THE WAR ON DRUGS

Will the Obama Administration Put Justice Back in the Criminal Justice System?

President Obama faces a heap of crises: a major economic recession,
crumbling national infrastructure, and ongoing wars in Iraq and Afghanistan.

Buried in that heap is another war, one less present in public
discourse but no less toxic: the drug war. The concentrated
battleground of the drug war has been on domestic soil, with
America's so-called interdiction efforts spreading the fight across
the world, from poppy-rich Afghanistan to the coca-nurturing Andes to
the most brutal battlefield of them all, Mexico, which saw more than
5,600 drug-related murders last year, including several that involved
publicly displayed decapitations

With the Obama administration, many see an unprecedented opportunity
for meaningful criminal justice/drug war reform. Much of that hope
stems from Obama's seven-year track record as a state senator in
Illinois--a state with one of the nation's largest prison
populations. In Springfield, Obama sponsored more than 100 bills on
crime, corrections, treatment, re-entry, racial disparities and the
death penalty that were mostly (though not exclusively) progressive in nature.

He also gained respect among younger voters for his willingness to
talk candidly about his teenage drug use, and his present-day battle
with nicotine addiction. During a campaign stop at Northwestern
University while running for the U.S. Senate in 2004, Obama told a
crowd of students that he supported decriminalizing marijuana (a
position he no longer supports publicly). More significantly, Obama
flatly stated that "the war on drugs has been an utter failure."

"Most of what Obama has said previously on criminal justice issues
has been good," says David Borden, director of the Drug Reform
Coordination Network in Washington, D.C. "If he carries some of that
into office, we could see an enormous change in the direction of the
drug war and sentencing policies. That said, criminal justice reform,
especially when it comes to drugs, has always been the first issue
the Democrats drop when it looks like they're being called 'soft on crime.' "

Marc Mauer, director of the Sentencing Project in Washington, D.C.,
agrees with this cautious optimism.

"The political climate on crime issues has shifted significantly over
the last 10 years or so," says Mauer. "At the national level, there's
a modest but growing bipartisan movement for more rational policies.
We see it most clearly around prison re-entry issues."

After years of operating on the margins of political discourse, drug
war and criminal justice reform movements have reached a new plateau
of recognition and respect. Conservative lawmakers, law enforcement
associations, health professionals and religious groups have joined
the call for fiscal, legislative and social changes in our approach
toward criminality. Even mainstream civil rights groups, which often
shied away from directly addressing the injustices of the drug war
and the class and ethnic disparities in arrest and sentencing rates,
have grown more comfortable allying themselves with criminal justice reform.

Yet mainstream Democrats have continued dragging their feet--to the
point of pushing the kind of punitive legislation championed by
President Reagan.

"We've seen this for over 30 years now, that Democrats have often
been reluctant or even hostile to the idea of embracing criminal
justice reform," Mauer says. "Our strategy is to continue to reach
out to Republicans and conservative constituencies to develop broad
support for some of these reforms. We need to give Democrats a
comfort zone . a sense that they're not being 'too out there.'"

The Second Chance Act, signed into law in April 2008, provided just
such a comfort zone for Congressional Democrats and Republicans
alike. Introduced by Rep. Danny Davis (D-Ill.) and Rep. Chris Cannon
(R-Utah) in the House and by Sens. Joseph Biden (D-Del.), Arlen
Specter (R-Pa.), Sam Brownback (R-Kan.), and Patrick Leahy (D-Vt.) in
the Senate, the act was signed into law in April 2008. It was a
remarkable step forward for a country that had all but turned a blind
eye to sky-high recidivism rates for decades on end. (Of nearly
752,000 people released from U.S. prisons annually, two-thirds will
be re-arrested within three years.)

The Second Chance Act provided an initial $362 million in federal
grants to government agencies, as well as community and faith-based
organizations, for the purpose of providing employment assistance,
substance abuse treatment, housing, family programming, mentoring,
and other social services known to reduce re-offending and drug
addiction relapse. Unfortunately, the Democratic-controlled Congress
has yet to authorize that funding.

States Take the Lead

In the meantime, state legislatures aren't waiting for the federal
government to provide cues on how to handle criminal justice reform.
Mauer points out that many states have already enacted their own
changes. Connecticut, Iowa, Oregon and Wisconsin have specifically
enacted legislation to address racial disparities in arrest and
sentencing rates--and to ensure that proposed legislation be reviewed
for its potential to exacerbate such disparities. (Obama and Biden
have also placed racial profiling, as well as a federal version of
racial impact legislation, on their national agenda.)

Since 2004, at least two dozen states have enacted policies or
legislation that promote alternative sentencing and treatment
diversion; diminish the number of parolees sent back to prison for
non-serious violations; implement gender-responsive strategies to
address the unique needs of females in the criminal justice system;
and/or modify mandatory minimum sentencing laws.

And in 2006, the U.S. Conference of Mayors even passed a resolution
opposing all mandatory minimum sentences for drug crimes and called
for "fair and effective" sentencing policies.

Legislators and politicians have begun to realize that these kinds of
reforms are much more likely to garner public support than ever
before--even in red states like Kansas, where an early-release
program has been created for prisoners who complete education,
counseling or other programming requirements.

With one in 31 Americans now under some form of correctional
supervision, mass incarceration is hitting closer to home for urban,
suburban and rural residents who never envisioned family members
would one day be locked away in remote prisons. Some have even been
shipped off to other states. (Out-of-state transfers are routine in
the federal system, and increasingly common in overcrowded state
prison systems that contract with private prison operators.)

While California, New York and Texas have begun to show slight
decreases in their bloated prison populations, the South has become
the epicenter of the latest incarceration upsurge: Kentucky (#1),
Florida (#5), Virginia (#6), Alabama (#7), and Louisiana (#8) are in
the nation's top 10 for imprisonment rate increases from 2000 to
2007. Drug-related arrests--nearly 2 million in 2007--continue to
play a major role in driving up the numbers of jail and state prison
inmates, while the majority of federal prisoners are doing time for
drug offenses (more than 95,000 men and women in 2007).

The human cost of mass incarceration is increasingly visible, and so,
too, are the economic costs. According to the Pew Center on the
States, total state general fund expenditures on corrections rose 315
percent from 1987 to 2007, while 13 states devote more than $1
billion per year out of general funds to their corrections
departments. (At nearly $9 billion, California's annual spending on
corrections leads the nation.)

By 2011, the Pew Center's Public Safety Performance Project predicts
that the nation's prison population will grow by more than 190,000
men and women, at a cost of $27.5 billion, while immigration-related
detention is likely to increase at an exponential rate. Already, the
U.S. government detains more than 400,000 immigrants at some point
during the year, usually within the confines of privately run facilities.

Overall, the progressive think tank Justice Policy Institute
estimates that total annual spending on all facets of the criminal
justice system--including policing, imprisonment and the
judiciary--adds up to a staggering $213 billion.

Reframing the Debate

Officially, the government is waging the drug war to combat illicit
drugs. Instead, it has turned into a war against the poor en masse,
says Drug Policy Alliance Director Ethan Nadelmann. People of color,
who are disproportionately poor, make up 35 percent of the national
population, and yet comprise 69 percent of the national prison population.

Jack Cole, a former narcotics agent and founder of Law Enforcement
Against Prohibition (LEAP), says that the frequency of undercover and
outdoor buy-bust drug operations in inner-city neighborhoods may make
for great arrest numbers, but they do almost nothing to put a dent in
illicit drug sales--or use--because they target the poorest and
lowest-level drug users and sellers.

LEAP--whose members are current and former police officers and police
chiefs, federal agents, undercover operatives and prison wardens--is
the first U.S. law enforcement organization to advocate for the full
legalization of all drugs. It recently co-commissioned a study by
Harvard University economics professor Jeffrey Miron, who studied the
cost-benefit of legalizing and taxing drugs in the same manner as
alcohol and tobacco. According to Miron's analysis, released in
December, tax revenues nationwide would amount to approximately $32.7
billion a year. Miron also found that, if drugs were legalized, the
United States would save more than $44 billion annually in costs
related to the enforcement of drug laws.

"The repeal of alcohol prohibition had a great deal to do with the
fact that we were going through the Great Depression," says Cole.
"Now that we're in the worst recession since the Great Depression,
people are finally thinking about the economy when they think about
the drug war. By legalizing drugs, we could go from spending $69
billion on the war on drugs each year to realizing total savings and
revenue of $76.8 billion."

Biden's Record

While LEAP eschews the idea of intermediate steps toward drug policy
reform, most other progressive criminal justice organizations and
think tanks are reaching for middle ground by appealing to Obama's
sense of fairness and equity.

Vice President Joe Biden should be a strong asset to Obama in this
regard, says the DPA's Nadelmann. The new Congress is likely to take
up a bill that Biden sponsored to eliminate the large federal
sentencing disparity between crack and powder cocaine use enacted
during the Reagan years. (It takes five grams of crack cocaine to
trigger an automatic five-year federal prison sentence, whereas it
takes 500 grams of powder cocaine to result in the same mandatory minimum.)

Biden has a favorable reputation on criminal justice issues and
racial inequities while still remaining a consistent ally to law
enforcement, says Nadelmann, which makes him all the more influential
with more reluctant members of Congress.

But Biden's track record is mixed. Early in his career, he was a
supporter of punitive, drug war-related legislation. More recently,
he touted the RAVE Act--which held club owners and organizers of
music gatherings responsible for drug use by participants. When it
failed to pass, Biden attached it as a rider to the law
enforcement-supported Amber Alert bill (a national alert system to
help locate missing children), which Bush signed into law in 2003.

Propaganda Machine

Perhaps the biggest obstacle to significant drug policy reform will
come from the federal Office of National Drug Control Policy (ONDCP)
and its director, the so-called Drug Czar.

John Walters, the Bush administration's drug czar, continued to put
most federal funding dollars into law enforcement and interdiction
efforts, blithely touting record-high drug arrest numbers as a sign
of progress, even as independent surveys indicate rising levels of
substance use and abuse among American teens.

Obama has yet to name a permanent drug czar. (He named Ed Jurith, a
long-time ONDCP bureaucrat, its acting director, but Jurith is widely
considered a temporary placeholder.) Much of the speculation has
centered around former Rep. Jim Ramstad (R-Minn.), a recovering
alcohol abuser who favors some treatment options, particularly
faith-based and 12-step programs.

But Ramstad also opposes decriminalization, legalization and medical
marijuna--to the extent that any debate is out of the question. He
also wants to continue the federal ban on needle-exchange funding, a
stance Obama does not agree with. Indeed, word of his consideration
has brought together a broad coalition of groups in opposition,
ranging from Students for a Sensible Drug Policy, to the National
Black Police Association, to medical marijuna proponents to HIV/AIDS
prevention groups.

Because of the influence of the drug czar on federal policies, LEAP's
Cole says that it is unlikely that Obama will have the political will
or backing to recognize that "prohibition has always failed."

"Every two weeks, for the last 20 years, the U.S. has built the
equivalent of 900 prison beds," he says. "Still, our prisons are
bursting at the seams. Over the last 38 years, we've had a cumulative
arrest record of 39 million arrests for nonviolent drug offenses.
When are we going to say, 'Enough!'?"

The big question is how much concern the Obama administration will
ultimately show for people ensnared in the criminal justice system.
And what of the plight of prisoners, who collectively constitute the
nation's most vulnerable, least-educated, sickest, poorest, mentally
ill and socially castigated individuals?

Reformers say they hope the new administration and Congress will take
a cue from the U.S. Sentencing Commission, which is examining ways to
alleviate massive national jail and prison overcrowding through
sentencing alternatives, drug treatment and support for increased
judicial discretion. The commission plans to make its recommendations in May.

During the June 28, 2007, Democratic debate, Obama stood his ground
on the need for ongoing criminal justice reform by emphasizing that
the system "is not color blind. It does not work for all people equally."

It remains to be seen how far Obama's vision for reform will extend
and whether it will shine toward the darkest corners of prison cells,
far out of sight and therefore all too easily out of mind.

[Sidebar]

A REPORT FROM THE FRONT LINES IN THE WAR ON DRUGS By Leonard C. Goodman
Note: Leonard C. Goodman is a criminal defense lawyer in Chicago and
adjunct professor of law at DePaul University.

The war on drugs is now in its 25th year. Across the United States,
U.S. Attorneys Offices are spending tremendous resources prosecuting
"drug conspiracy" cases in which young black and Hispanic low-level,
mostly nonviolent drug dealers are being sent away for decades.

To give you an idea of the senseless nature of these prosecutions,
let me describe my current case, set for trial in mid-February.

I am appointed counsel for a young black man from an inner-city
Chicago housing project. He is charged in federal court, along with
14 other young black men from the same housing project with
"conspiracy" to distribute illegal drugs and other charges. All but
one of the 15 defendants are too poor to hire a lawyer and thus have
court-appointed counsel, whose fees are paid by taxpayers. (Appointed
counsel in federal court earns roughly $100 per hour.)

Prior to indictment, federal agents spent more than a year
investigating these dope dealers. The agents used informants to make
controlled buys. They set up video and audio surveillance in an
apartment frequently used by the defendants. They listened to and
recorded hundreds of hours of cell phone calls, listening to every
call made by every defendant who has been incarcerated in the past
five years. (State and federal prisons routinely record all inmate calls.)

My client, like many young black men from the projects, has a prior
drug felony. If convicted on the conspiracy charge, he must be
sentenced to a minimum term of 20 years. There is no parole in the
federal system and inmates must serve 85 percent of their sentences.

According to the U.S. Criminal Code, only federal prosecutors (not
the judge) have discretion to allow a sentence below 20 years. My
client would plead guilty if the prosecutors would withdraw the
enhancement for his prior felony, which would give the judge
discretion to sentence below 20 years. But the prosecutors have
refused because they don't want the judge--who is known to be
compassionate--to have any discretion. Thus we are going to trial
along with about seven or eight other defendants.

The government indicates that it expects the jury trial to last six
weeks, during which time the prosecution will call dozens of
witnesses--cooperating informants and federal agents--and play hours
of video and audio surveillance tapes.

Of course, the taxpayers will pick up the tab for all this: three
federal prosecutors, a small army of federal agents, seven or eight
court-appointed defense lawyers, a federal judge and her staff. All
of these people will spend six weeks trying this case, plus hundreds
of hours in trial prep. Afterward, taxpayers will pay to incarcerate
the defendants--most of whom will be convicted. The cost of
imprisonment has been put at around $30,000 per year per inmate.

My client is currently out on bond, working in a barber shop, taking
care of his three children and attending his court-ordered drug
counseling three days a week. If he is convicted, his kids will be in
their 20s and 30s by the time their father is released. And it is
statistically probable that the taxpayers will pay to incarcerate his
kids some day, as they will grow up poor and fatherless.

There is a better way. Other countries, including many in the
European Union, have found that treating their societal drug problems
as primarily a criminal matter is not only ineffective but
counterproductive, in that it increases the profitability of drug
trafficking and the violence associated with black markets. These
countries have found that a taxpayer dollar spent on treatment and
education is far more effective than a dollar spent on drug cops,
drug prosecutors and jail cells.

The United States should have learned these lessons during its failed
experiment with alcohol prohibition in the 1920s. We also might have
learned from the past 25 years of the war on drugs. During this war,
illegal drugs have become more available and the violence associated
with black markets has claimed thousands of innocent lives. What's
more, the temptation to grab large amounts of untraceable cash have
corrupted countless numbers of drug cops.

Why do we continue to pursue such a costly and ineffective policy?
Because many politicians have found it useful to position themselves
as tough on drugs while many law enforcement agencies depend on the "
drug war" to justify their bloated budgets.

The end of Prohibition was brought about by a government study. In
1931, President Hoover commissioned a panel of experts (called the
Wickersham Commission) to see how prohibition could be saved. The
resultant catalogue of failure set the stage for repeal.

President Obama should commission a panel of experts to study our
current drug law policies and to suggest alternatives. The
publication of such a report could pressure politicians to abandon
the failed and costly policies of the past.