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The death of the war on drugs.

IN HIS FIRST INTERVIEW as the nation's new drug czar, Gil Kerlikowske told the Wall Street Journal that the phrase "war on drugs" should be retired because it implies that citizens who use illegal substances are enemies of the state to be conquered and destroyed. Instead of viewing the vast majority of these citizens as criminals deserving of punishment, a new paradigm should embrace them as members of our communities deserving of opportunities to establish or renew healthy and productive lives.

There are certainly no new arguments available to employ in support of or in opposition to current U.S. drug policies. Instead, we are locked in an ideological contest between two conflicting and not mutually exclusive philosophical perspectives, both of which have existed for many centuries. More specifically, the contest is between the perspective that a genuinely free society maximizes the rights and freedoms of its citizens, in turn allowing them to think, say, and act as they please as long as they don't harm or injure their fellow citizens. The other perspective emphasizes the claim that a stable social order can't be maintained in the absence of the legal enforcement of a rather long list of the shared moral values of its citizens. In short, this contest is what the eighteenth century Scottish philosopher David Hume called the perpetual struggle between the liberty of the individual and the authority of the state. And what can't be emphasized enough is that this isn't a struggle between the armies of good and evil. Much too often, defenders on both sides are persuaded that truth and justice are on theirs, and they have allowed their zeal to sink to the level of inflammatory attacks on the motivation and personal characteristics of their opponents. Regardless of our moral stance on a cluster of very divisive issues, all of us should heed the sage comments of the philosopher Isaiah Berlin in his 1958 "Two Concepts of Liberty" lecture: "If, as I believe, the ends of men are many, and not all of them are in principle compatible with each other, then the possibility of conflict--and of tragedy--can never be wholly eliminated from human life, either personal or social. The necessity of choosing between absolute claims is then an inescapable characteristic of the human condition."

I am enormously proud to be an American citizen and wouldn't choose to live in another country. I am, however, unequivocally ashamed that during the last thirty years, our criminal justice policies (federal and state) have sealed our identity as the nation that incarcerates a higher percentage of its population than any other country in the world. The dominant crime control policies are driven by a harsh retributive view of punishment committed to the belief that the only criteria are the seriousness of the offense and the criminal history of the defendant. Making no claim to originality, we have been beguiled by an addiction more powerful than all the drugs combined, namely, vengeance. This is a bitter pill that honesty obliges us to swallow.

There is a wealth of scholarly bickering about the feasibility of determining the actual number of non-violent drug offenders in U.S. federal, state, and private prisons. In his 2004 book, Thinking about Crime: Sense and Sensibility in American Penal Culture (Oxford University Press), Michael Tonry makes the worthy claim that
   Many thousands of people are serving decades long
   sentences in federal prisons for non-violent drug
   crimes. Their misfortune is to have been sentenced
   in federal courts before avoidance of sentencing
   guidelines by federal judges and prosecutors
   became common practice. Hundreds of thousands
   of people, mostly but not only of minority and disadvantaged
   backgrounds, have spent much of their
   young adulthood in prison for drug crimes. Their
   misfortune is that unwisely, but for young people
   not uncommonly, and typically as a result of peer
   influences and teenagers' sense of invincibility, they
   experimented with drug use, got hooked, and got
   caught--in a time when antidrug policies were
   unprecedentedly harsh.

It would be a major error in judgment to claim that the tough law-and-order campaigns of those seeking to retain or attain public office and well-financed lobbyists urging the construction of more prisons, particularly private prisons, were solely responsible for the realities presented by Tonry. Members of Congress and state legislators would not have been able to craft and pass harsh penalties without the strong support of their constituents. Fortunately, the opinions and sensibilities of a fast growing number of our citizens are moving in the direction of believing that the war of prohibition, eradication, and harsh penalties are costing far too much in terms of human fatalities and consuming far too much of our federal and state resources. Many groups of vocal dissenters using electronic mass communication are focusing on these items for an agenda for change: the medical use of marijuana; the de-criminalization of the possession of small amounts of marijuana; the still unresolved issue of the wide disparity in the disposition of cases involving crack and powder cocaine; access to clean syringes to reduce the spread of HIV and hepatitis C; and new medical research involving prescription heroin or heroin replacements with the goals of improving health and reducing crime.

The Uniform Crime Report of 2007 compiled by the FBI contains the following data: of the over fourteen million reported arrests, 1.8 million or 13 percent were for drug abuse violations. Of those, 47.5 percent were for marijuana and of that number 89 percent were for possession, the others involving the sale and manufacture or growing. Three of every four persons in the group of drug violators were under the age of thirty. It is a given that many thousands in this group had a significant criminal history and it is equally true that many thousands did not. This means that many thousands of young offenders with no criminal history are caught in the very wide net of criminal justice and the majority of them must endure a grueling process of adjudication which brands them with a conviction and the status of being a criminal.

A radical proposal, which I believe is realistically feasible, would retrain the same professionals who administer our criminal justice systems to create so-called pre-prosecution agreements which still send a message of societal disapproval, but leave no permanent scars. The specific guts of the proposal are as follows: all persons arrested for possessing small amounts of any illegal substance, excluding it's sale or manufacture, who have no criminal history shall be granted a one-time only pre-prosecution agreement not to exceed one year. Within thirty days of accepting this agreement, they shall complete a substance abuse evaluation by a state-certified substance abuse counselor approved by the local jurisdiction and follow any recommendations of said counselor. Within thirty days of successful completion of this agreement the local jurisdiction and the state's criminal records division shall destroy and expunge all records of the case, excepting a list of the participants. Any participant who is arrested and convicted of any new criminal offense before completion of the program is subject to prosecution of the original offense.

The prosecutors in every local jurisdiction of this country have the explicit or inherent authority to create these programs and they certainly have the discretionary authority to dispose of numerous felony arrests by using this option. I am not embracing the claim that people who violate the criminal laws have any kind of a right that obliges the state to provide a comprehensive menu of services to fix the causes of their illegal conduct. I am claiming that there is a compelling public interest to do so.

The demise of the war on drugs can be accomplished if President Obama musters the political courage to use the presidential bully pulpit to win public and congressional support for the National Criminal Justice Commission Act of 2009 coauthored by Senators Jim Webb (D-VA) and Arlen Specter (D-PA). The purpose of this commission is to, in the words of the legislation, "undertake a comprehensive review of the criminal justice system, make findings related to current federal and state criminal justice policies and practices, and make reform recommendations for the president, Congress, and state governments to improve public safety, cost-effectiveness, overall prison administration, and fairness in the implementation of the nation's criminal justice system."

The commission will have eleven members, the chair to be appointed by President Obama and the other ten members to be appointed by various elected officials. Hopefully, the majority of these ten members will be private citizens who are nationally recognized experts and whose collective experience embraces the specified areas of law enforcement, criminal justice, national security, prison administration, prisoner reentry, public health (including drug addiction and mental health), victims' rights and social services.

If this commission is enacted and its final product receives strong public support and congressional approval, it can deal a death blow to the present international perception that the United States is a rogue nation whose criminal justice system is at war with its own citizens.

Lawrence Jablecki, PhD, is a lecturer in the Master of Liberal Studies Program at Rice University and an adjunct professor of philosophy in the prison program of the University of Houston at Clear Lake. For eighteen years he was the director of the adult probation department in Brazoria County, Texas.
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Author:Jablecki, Lawrence
Publication:The Humanist
Geographic Code:1USA
Date:Sep 1, 2009
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