Reprinted from Greanville Post
Special to The Greanville Post | Commentary No. 4 (Part 2)
In my previous Commentary on this subject, I noted that in the period immediately following "the post-Baltimore police riot that resulted in the death of Freddie Gray was a call for the 'reform of the criminal justice system.' There were even some Repubs. who chimed in on that one, although one has doubts as to just how long Repub. devotion to the cause will last." In the column I compared some of the major features, in terms of their effects on their criminal justice systems of their respective times, of the two prohibitions. In the classic Prohibition, now remembered in movies, TV series, and even a recent ad for Budweiser beer, it was the trade, the domestic manufacturing, the importation, and the wholesale and retail sale of spirits and beer that was criminalized.
In contrast, in the "Drug War" not only are the above practices criminalized but so are the possession and use of the named currently prohibited substances: marijuana, heroin, and cocaine, and more recently methamphetamine. All of these substances, prohibited then or now are part of a group of chemicals called "RMADs" [OK; I made up the term, many years ago]: Recreational Mood-Altering Drugs. It happens that the most commonly used RMAD around the world is caffeine, and of course nicotine in tobacco products is widely used (and perfectly legal now in the U.S., although that was not always the case), and just happens to be, by a very large margin, the most harmful of the RMADs on a population basis.
As I also pointed out, it is the "Drug War," criminalizing possession and use, that fills our prisons with so many black young men, way out of proportion the number of whites, percentage-wise, imprisoned for the same offenses. Under prohibition, simple users of the prohibited substance caught in "a raid" were simply sent home. Under the "Drug War," simple users of the prohibited substances, especially if they are non-white, are sent to jail and then on to prison. "But supposing," I said, "that the criminality elements of the 'Drug War' were the same as they were for the earlier national prohibition aimed at the use of certain of the 'Recreational Mood-Alerting Drugs,' the RMADs. Yes, just suppose."
I then proposed that a simple lesson learned from Prohibition, if applied to the "Drug War" would lead to a very rapid change in the U.S. criminal justice system. That is to remove "possession and use" from the list of crimes as defined under it. Many fewer people would be sent to jail and then on to prison. If the law were applied retroactively to persons currently serving time for non-violent "possession and use" crimes, hundreds of thousands of persons would be released from the U.S. penal system.
Such a change would have enormous implications at a variety of levels. First of all, in the Federal prison system close to half of all inmates (close to 100,000) are serving time for "drug offenses." Some of those of course are incarcerated for violent and trade-related drug crimes, but many are not. At the state and local levels, it is possible that as many as 700,000 persons are incarcerated for a "marijuana conviction" of some sort, with many incarcerated for possession or use.
And so, if it were desirable to "reform the criminal justice system," the logical place to start would be to make the "Drug War" like Prohibition in its focus. Logical, "right" (as Michelangelo Signorelli, the SiriusXM Satellite Radio Progressive Talk host, 4-P.M. ET weekdays, is fond of saying)? Money-saving, right? A quick fix, without actually bringing the "Drug War" to an end, right? A move that would not only unburden the police, the courts, the jails and prisons, and the parole system (among others), but it would also remove the "criminal/felon" label from so many mostly non-white young men and women, a label that they have for life whether on drugs or not. A move that would be welcomed by oh-so-many in the non-white communities that have been the focus of the "Drug War" since it started, as well as at least certain of their organizational and political representatives.
But not so fast. From the social and economic perspective, ending the "Drug War" while at the same time developing a massive Public Health Approach to deal with the drug problem, for the currently illicits as well as all of the legal RMADs (see "The Public Health Approach to the Prevention of Substance Abuse," chapter 70 in Lowinson, J., et al, Eds., Substance Abuse: A Comprehensive Textbook, 2nd ed., Baltimore, MD: Williams and Wilkins, 1992; chapter 77 in the 3rd ed., Baltimore, MD: Williams and Wilkins, 1997; chap. 79 in the 4th ed., Baltimore, MD: Lippincott Williams and Wilkins, 2004, by myself) seems to be oh-so-logical. However, and it's a big HOWEVER, there is a group of stakeholders in maintaining the "Drug War" exactly the way it is.
There is not room in this space to consider any of them in any detail. (I will be doing just that in my forthcoming book, referenced below.) But just consider who they might be. First, the tobacco and alcohol industries are not interested in encouraging competition for their own RMADs. Presently, advertising in not permitted for marijuana in the states where it has been legalized (and contrary to the shouts of the drug warriors, simple availability of an RMAD does not ordinarily make its use go up. In fact, in Colorado, for the first year of the legal use of marijuana, tax receipts were below projections, meaning that sales were below expectations.) The sale of beer is certainly heavily dependent upon advertising, otherwise the beer industry wouldn't spend so much money doing it, and elements of it have opposed marijuana legalization, in California.
Second, of course the prison-industrial complex, both the private and public sectors. Private prisons are heavily dependent of "drug offenders" for the profits they earn. There are rural communities in many states that are dependent on state prisons for jobs and commerce in supplying those prisons. Then there are the prison guards. For example, when a marijuana-legalization proposition was on the ballot in California, the prison guards unions contributed to the forces opposing it.
Finally, there is the political driver of the "Drug War," the Republican Party. Certainly the US Political Duopoly has been behind it. Under the "liberal" Gov. Mario Cuomo, New York State built more prison beds than have all the previous governors combined. The "liberal" Pres. Bill Clinton signed the 1994 "Violent Crime Control and Law Enforcement Act," introduced in the Senate by the "liberal" Joe Biden. That Act is now recognized as a major driver of mass incarceration, especially of minorities.
Now these liberals' actions were thoroughly in contrast to supposed "liberal" values and principles (oh-so-often honored only in the breach), and may have been reactive to Republican claims that Democrats are "weak on crime" (although they may also be using the "the-Repubs.-made-me-do-it" line as a cover). But it is the Republicans, since Pres. Nixon began the "Drug War" in 1971, that have been the most consistent supporters of that "tough on crime" line. It is particularly easy to run on when the actions under it create and define the crime, and have the added "benefit" of targeting non-white population groups. While, as noted, some Republicans talked about the ills of "mass incarceration" following the Baltimore police riot, it remains to be seen just how many of them will hew to that line. I'm not holding my breath on that one. And as soon as one or more Repubs. starts chanting the "weak on crime" line, many Democrats will run away from the issue of dealing with mass incarceration, especially through a measure as simple as redefining "crime" under the drug law, as quickly as their little feet can carry them.
Finally, it is impossible to predict how the "drug policy reform" movement would react to the proposal. They have never been interested in linking their opposition to the "Drug War" to the larger matter of the use of RMADs, currently legal and currently not, in the U.S. society and what to do about it. Since their principal current primary focus is simply on the legalization of marijuana, one cannot predict how they would respond to this idea.