THE WAR AGAINST THE 'WAR ON DRUGS'

If that old adage still holds true, then the nation may soon see a
gradual backpedaling from the criminal justice policies that have led
to wholesale incarceration in recent decades.

For the most populous state in the union is on the verge of
insolvency--partly because it didn't set aside a rainy-day fund during
the boom years; partly because its voters recently rejected a series
of initiatives that would have allowed a combination of tax increases,
spending cuts and borrowing to help stabilize the state's finances
during the downturn; partly because it has spent the past
quarter-century funneling tens of billions of dollars into an
out-of-control correctional system. Now, as California's politicians
contemplate emergency cuts to deal with a $24 billion hole in the
state budget, old certainties are crumbling.

The state with the toughest three-strikes law in the land and a prison
population of more than 150,000 is facing the real possibility of
having to release tens of thousands of inmates early in order to pare
its $10 billion annual correctional budget.

At the same time, an increasing number of the state's political
figures are challenging the basic tenets of the "war on drugs," the
culprit most responsible for the spike in prison populations over the
past thirty years; they argue that the country's harsh drug policies
are not financially viable and no longer command majority support
among the voting public.

Similar stories are unfolding around the country; in Washington,
federal officials are talking about drug-policy reform and, more
generally, sentencing reform in a way that has not been heard in the
halls of power for more than a generation.

For old-time politicians, who have spent the past three-plus decades
navigating the country's roiling tough-on-crime waters, the changes
are almost unfathomable. Onetime California governor and current
gubernatorial hopeful Jerry Brown, for example, has spent decades
trying to erase the public's memory of his liberal tenure in the
1970s, when California's prison population shrank to well below
30,000. As a part of that remodeling, he has assiduously courted the
California Correctional Peace Officers' Association, the trade union
representing the state's prison guards.

Now, with his war chest flush with CCPOA funds, Brown won't do
anything to challenge tough-on-crime orthodoxies.

Yet many newer political faces view the current moment as something of
an opportunity. For Betty Yee, chair of California's Board of
Equalization--the office responsible for collecting sales tax in the
Golden State--the changes, especially around drug-law enforcement,
can't come soon enough.

Sitting at her conference table high up in one of downtown
Sacramento's few sky-rises, Yee has marijuana on her mind.
Specifically, she has become an outspoken advocate for legalizing pot
for residents older than 21. Her friend Assemblyman Tom Ammiano, a
former San Francisco city councilman, is pushing just such a bill in
the State Legislature. Yee wants to levy fees on business owners
applying for marijuana licenses, impose an excise tax on sellers and
charge buyers a sales tax. Do it properly, and the state could reap
about $1.3 billion a year, she has estimated. "Marijuana is so easily
available. Why not regulate it like alcohol and tobacco?" she says,
and gain additional tax revenue into the bargain?

Not so many years back, any public figure who dared to advocate such
reforms would have been shunned by much of the establishment. It's a
measure of how much things have changed that Yee and Ammiano's
proposal is being taken seriously across the board.

In fact, shortly after I met with Yee, Governor Arnold
Schwarzenegger--whose office declined my request for an interview for
this article--announced that the state should at least consider the
merits of pot legalization. He wasn't advocating it, he was careful to
stress, but he did think the time was ripe to debate the issue.

"The budget is so bad now, the populism of the issue is beginning to
work here in the Legislature," Ammiano says as he paces back and forth
in his office, toward the bookshelves with the four martini glasses
and Golden Gate Bridge bookends and then away again.

On the wall near the receptionist's desk hangs a huge poster from the
movie Milk. "Everyone thinks it's Cheech and Chong," he says with a
laugh, describing the marijuana legalization bill. "But there's a lot
of policy wonks" supporting it. "There's very conservative support
from the oddest sources and locations." The GOP chair in the state, as
well as Tom Campbell, a Republican gubernatorial hopeful, have
indicated their support for his bill, Ammiano declares. "When it
starts to cost more money than it's worth even in the eyes of the
pooh-bahs, then you can accomplish something."

Over the past three decades, California has tripled the number of
prisons it operates, has more than quintupled its prison population
and has gone from spending $5 on higher education for every dollar it
spent on corrections to a virtual dead-heat in spending.

That puts it in the same boat as Michigan, Vermont, Oregon,
Connecticut and Delaware--all of which, according to estimates by the
Pew Charitable Trust, spend as much or more on prisons than on colleges.

California is also under federal court order to implement costly
improvements in the delivery of medical and mental healthcare services
in prisons and to release close to a third of the prison
population--about 55,000 inmates--to improve conditions for those
remaining behind bars.

Schwarzenegger adamantly opposed that ruling by a three-judge panel.
Now, though, in the face of fiscal calamity, he is proposing cutting
the prison population by tens of thousands.

Of course, he is doing that not out of concern for inmates'
well-being, or out of a sense that many sentences are disproportionate
to the crime, but simply because the state can no longer pay its bills.

Schwarzenegger believes he can save several hundred million dollars by
releasing some categories of inmates, in particular nonviolent
offenders who are in the country illegally and stand to be deported
upon early release.

To save money, he's also talking about firing hard-working guards (a
far better, but costlier, option would be to scale back the prison
system and to retrain surplus guards to work in other venues), and
he's asking for close to $1 billion in cuts to vital prison
drug-treatment, education and job-training services.

At the same time, since this is all about shaving dollars off budgets
rather than intelligent criminal justice system reform, there's no
talk of investing in crucial re-entry infrastructure.

In short, it looks like California will go about a necessary scaling
back of the correctional system exactly the wrong way. But however
grudgingly state officials are approaching the issue, at least they
recognize that the magnitude of prison spending is a problem.

Down the road, when Californians start thinking beyond the crisis
moment, that new understanding will shape policy responses for years
to come. It will both feed off and help create a new national
sentiment that being "tough on crime" isn't necessarily being smart on
crime.

Tough-on-crime rhetoric, and the policies and institutions that grow
from it, emerged from Nixon's Silent Majority tactics, from his
recasting of politics as a series of debates around "values" rather
than bread-and-butter issues.

And in the same way the 2008 presidential election ended that peculiar
chapter in American history, so too did it end the monotone cry that
we could incarcerate our way out of deep-rooted social and economic
problems.

Despite a few halfhearted GOP attempts to accuse Democrats of being
weak on drugs and public safety--Obama had, after all, written about
his drug use during his teenage and early adult years, which,
according to the old calculus, should have made him an easy target for
scaremongers--neither presidential candidate played the tough-on-crime
card. It was a nonissue for most voters and thus for the candidates.
In fact, recent Zogby polling commissioned by the National Council on
Crime and Delinquency suggests that close to eight in ten Americans
favor alternatives to incarceration for low-level nonviolent offenders.

Another Zogby poll, from last fall, found that just more than
three-quarters of Americans felt the "war on drugs" was a failure.

The sea change in public opinion holds in California too. In late
March the Los Angeles Times ran a column asking readers their opinion
on marijuana legalization. So far 4,927 people have replied, and 94
percent of them favor legalization. A Field Poll in April found that
56 percent of Californians favor legalizing and taxing pot.

The new atmosphere is most apparent vis-a-vis the Obama
administration's move away from "war on drugs" rhetoric and toward a
harm-reduction strategy.

Gil Kerlikowske, the new head of the Office of National Drug Control
Policy, has made it clear that he prefers treatment over punishment
for drug users, a preference he brings from his time as a
reform-oriented police chief in Seattle. Putting money where its mouth
is, the new team has increased funding for the Bush-era Second Chance
Act, intended to connect released inmates with community services such
as housing, family counseling and addiction treatment. Support is also
growing for the creation of more drug and mental health courts across
the country.

Finally, there are the promises being made by drug policy leaders in
Washington that state medical marijuana laws will be respected rather
than trampled, as they have been for more than a decade.

A related issue involves the infamous discrepancy in sentences for
crack-versus powder-cocaine crimes.

Vice President Biden was one of the architects of these laws--which is
why his repudiation of them in recent years has been so significant.
The day after Obama's inauguration, the president's website mentioned
the importance of eliminating these discrepancies--as well as of
promoting needle-exchange programs and expanding the nation's
embryonic network of drug courts.

The House recently held hearings on the sentencing discrepancy
issue.

For Margaret Dooley-Sammuli, deputy state director of the Drug Policy
Alliance in Southern California, sacrosanct legislative underpinnings
of the "war on drugs" are starting to look like the Berlin Wall, "up
one day and down the next"--seemingly impregnable; in reality, utterly
fragile.

Over the past few years, an increasing number of localities have
dabbled in ways to simply walk away from the "war on drugs."
Initiatives in several states and cities, including Denver; Missoula,
Montana; Albany County, Oregon; and Seattle have mandated that law
enforcement agencies deprioritize marijuana arrests.

Several cities have begun needle-exchange programs.

And states like California have passed citizens' initiatives mandating
that first-time drug offenders be channeled into treatment programs in
lieu of prisons.

Then there's Virginia Senator Jim Webb's legislation creating a
blue-ribbon commission on criminal justice reform, with a mandate to
put all questions on the table during its eighteen-month tenure--from
drug law reform to the restoration of judicial discretion in
sentencing, from parole reforms to different approaches to gangs,
border patrol, prison architecture and the like. Webb has been pushing
for systemic criminal justice reform for years; in 2009, he believes,
it will acquire legs. During a telephone interview for this article,
Webb said that President Obama "has personally called me on this, and
he's very supportive of the idea of moving forward." Across the aisle
many Republican senators, including senior figures like Lindsey
Graham, have also expressed support for the idea.

The bipartisan backing for Webb's commission is partly a response to
the escalating drug-and-gang crisis south of the border.

There's a growing recognition in US policy and law enforcement circles
that government dysfunction, phenomenal levels of street violence and
the rising power of drug cartels are threatening to move from being a
Latin American problem to one that destroys the integrity of the
Mexican state and risks spilling over more heavily into the American
Southwest. Nobody, no matter their political stripe, wants the
Tijuana-ization or Juarez-ization of Phoenix or Los Angeles, of San
Diego or El Paso.

"It really is a serious problem in this country," Webb argues. "The
transnational gangs or syndicates are bringing a tremendous amount of
drugs into this country."

To get a handle on that problem involves thinking of ways to
neutralize these gangs, which inevitably leads to a discussion of
partial drug decriminalization or legalization. Why? Because once the
drug market is no longer confined to the shadows--once it is regulated
and taxed, as alcohol was after Prohibition ended in 1933--the
violence that accompanies struggles for control of that illicit market
will disappear.

After years of denying this truth and assuming that the country could
incarcerate its way out of the drug-abuse epidemic, a number of
American politicians, Webb included, are touting that seemingly
paradoxical fact. Want to get really tough on crime?

Well, do the smart thing: start working out ways to neutralize the
drug cartels, start talking about at least limited forms of
decriminalization or legalization.

It is, Webb argues, "a fair issue for this commission. Every piece of
it should be fair game."

For an administration like Obama's that prides itself on thinking
outside the box, systemic drug policy reform is an intriguing
prospect. An increasing number of law enforcement people and judges
have also decided that this is an idea worth running with.

"I've never seen so much interest," says retired Orange County
superior court judge James Gray, who has been advocating marijuana
legalization since the early 1990s. "My phone is ringing much more
than it ever has before."

"We need to ask, Is there a more sensible approach?" argues Norm
Stamper, who, like Kerlikowske, is a former chief of police of Seattle
who believes the criminal justice system is broken. "And the answer is
prevention and education and treatment."

After decades of being on the defensive, progressive criminal justice
reformers suddenly have a receptive audience.

New York, which has closed some of its prisons in the past decade, has
spent the last few years unraveling the tangled web created by the
1970s-era Rockefeller drug laws. Michigan, Louisiana and several other
states have also scaled back their harshest mandatory drug sentences.

The State of Washington is looking at how to redefine low-end drug and
property crimes as misdemeanors rather than felonies.

And in Michigan, which allows a $100 theft to trigger a four-year
prison sentence, legislators are pushing to make the threshold $1,000
instead, so as to reduce the number of low-end offenders pushed into
long-term incarceration and hobbled for life by felony
convictions.

Meanwhile, correctional system administrators in Georgia, Illinois and
Arkansas have started the long, hard task of reforming their systems
from within even without a new consensus emerging on the issue.

Howard Wooldridge, a retired police detective from Bath, Michigan, who
advocates in DC for criminal justice system reform, says the moment is
ripe for change. "I've been doing this for twelve years, and this is
by far the most perfect storm."

America isn't about to abandon all of its "tough on crime" tenets. Nor
should it in all instances.

The three-strikes law will likely remain in place for violent
offenders, as will the growing body of laws limiting where sex
offenders may live. Violent crimes will probably continue to trigger
longer sentences than they did before the get-tough movement.

And while some inmates will qualify for early release, many sentenced
to long terms at the height of the tough-on-crime years will stay in
prison.

But out of economic necessity and because of shifting mores, the
country will likely get more selective, and smarter, about how it uses
incarceration and whom it targets for long spells behind bars.

This will be especially true for drug policy--the multi-tentacled
beast that's sucking most people into jails and prisons.

There, profound changes are likely to develop over the next few
years.

And when it comes to the mentally ill, momentum continues to build
around mental health courts designed to get people medical and
counseling help rather than simply to shunt them off to prison.

States like Pennsylvania are starting to develop parallel institutions
to deal with mentally ill people who run afoul of the law. Many other
states will likely follow suit in the near future.

Forty years after deinstitutionalization, a new consensus is emerging
that prisons became an accidental, de facto alternative to mental
hospitals, and that very little good has come from that
development.

"I believe that we have a compelling national interest," explains
Senator Webb, referring to systemic criminal justice reform. "That's a
term that is carefully chosen.

This is a national commission, but it should not be limited to looking
at the federal prison system.

You have to look at the whole picture and then boil it down into
resolvable issues."