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In 2009 I had the opportunity to go see former Attorney General John Ashcroft speak to the Federalist Society at Yale University, that educational playground of the wealthy, powerful, and well-connected. It’s an institution that has turned out a veritable “Who’s Who” of leading stars of American political life over the past three or four generations.
To my delight, the floor was opened to the public for a post-speech question and answer session. As best I can recall, my question was as follows:
“Senator Ashcroft. Isn’t it time for conservatives, libertarians, and classical liberals come together to admit that drug abuse should be treated as a public health issue and not as a criminal issue? Isn’t it fair to suggest that the drug war, and its associated mass incarceration, has failed by every metric? Wouldn’t it be better to legalize drugs and use the massive budgets of the DEA, the criminal justice system, and our Bureau of Corrections to fund drug treatment and education programs?”
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Senator Ashcroft said that he disagreed with me, but that I did raise valid points, and that he was open to continuing a dialogue about the subject in the conservative and/or libertarian movement.
Much has changed in the past generation since the 1980s when Ronald and Nancy Reagan declared drugs to be America’s public enemy number one. Criminal justice reform has been a buzzword in recent years, both on the left and the right. Many from across the political spectrum, have called into question our national drug policy. Ron Paul, in many ways the godfather of the libertarian movement, has for years questioned prohibition. Conservative minister and political activist Pat Robertson has suggested that marijuana be legalized and regulated like beverage alcohol. Voters in a number of libertarian-leaning states like Colorado, Alaska, Maine, and Nevada, have outright legalized marijuana cultivation and consumption. Even National Review, the flagship publication of American conservatism, tacitly endorsed legalization, famously declaring in 2014 that “The War on Drugs Is Lost.”
Donald Trump‘s hardline position on drug policy has scared many libertarians. He has been very unreceptive to rethinking the drug war and the mass incarceration that it has caused, and his appointment of fellow hardliner Jeff Sessions as Attorney General will certainly not set libertarians at ease. Yet, if we’ve learned anything in the past two weeks, it’s that Trump is full of surprises and he is perhaps the first president in US history who will enter office with an entirely clean slate, beholden to no party or ideology. He could surprise us.
Netflix has recently released a documentary called 13th, which addresses the issues of the prison-industrial complex, mass incarceration, and racial bias in policing and sentencing. In many ways it was a response to the Black Lives Matter movement that has taken the United States by storm in the past year, and ratcheted up the pressure on politicians of both parties with its high-profile, in-your-face tactics.
The Black Lives Matter movement abhors politics as usual, and often views the Democrats as being just as complicit as Republicans on issues of policing, criminal justice, incarceration, and drug policy. For decades, the drug war was an issue that no one wanted to touch. Being called “soft on drugs” was seen as political suicide. Few dared to question our drug policies. Now, that is changing.
13th raises some valid points, but if fundamentally falls flat because it fails to distinguish between mass incarceration related to legitimate and violent crimes, and mass incarceration related to victimless crimes; mainly drug cultivation, distribution, and use. Virtually no one would suggest that lengthy and harsh prison sentences should be abolished for serious, violent crimes such as murder, rape, carjacking, kidnapping, and armed robbery. A majority of Americas today, however, do support drastically rethinking our drug policy and sentencing.
In my view, Trump would be prudent to adopt a three-pronged approach to reforming the American criminal justice system.
Rethink the Drug War
Drug prohibition has been a complete and utter failure. It has not ended drug use and abuse. It has led to the incarceration of millions of Americans for victimless crimes. This places an onerous double burden on our national economy: It takes a sizeable chunk of American citizens out of the workforce, while simultaneously requiring massive spending on incarceration.
It is a moral travesty that, due to a variety of “Three Strikes and You’re Out” laws, and mandatory minimum federal sentencing guidelines, that drug crimes are routinely punished with longer sentences than far more serious and violent crimes against life, liberty, and property.
It is not at all inconceivable that a man caught with a pound of cocaine gets a longer prison sentence than a man who kills someone in a bar fight.
Or that a small-time dealer sentenced for “intent to distribute” receives a longer sentence than a convicted rapist.
Or a young man in the inner city receives a longer sentence for acting as a lookout for a drug gang, than a man who perpetrates an armed robbery of a convenience store.
It is vital for the future of the conservative and libertarian movements that we educate our friends, neighbors, coworkers, and family members about this issue. Why punish victimless crimes? A drug addict should be sent to rehab, not a 10 or 20 year prison sentence.
I am confident that the Founding Fathers would agree: the criminal justice system’s primary focus is to protect the citizenry from crimes against their life, liberty, and property. We need to rethink our entire approach to drug policy and shelve the entire concept of the failed “Drug War.”
Recruit Minorities in Police Forces
It is troubling, to say the least, when a largely white police force patrols a largely black and/or Latino community. It hearkens back to Apartheid-era South Africa, and makes for frighteningly bad optics. It is no coincidence that in Ferguson, MO, which saw some of the worst outbreaks of violence and rioting, that the police force did not look like the community it was representing.
The African-American community in the United States has legitimate grievances against our criminal justice system. But rioting, looting, and attacking police officers is not the answer. Rather than spend billions a year fighting a Drug War that we can never win, why not spend hundreds of millions on recruiting, training, and equipping minority police officers who can be role models and peacemakers in their own communities?
Establish Civilian Review Boards
One of the main reasons that the Framers of the Constitution were so ingenious was that they envisioned an elaborate system of checks and balances which decentralized power and established a lengthy and thoughtful legislative process. This same principle of checks and balances could and should be implemented in the relationship between police officers and the communities they serve. It seems only just that those who are paying the salaries of police officers should have some official mechanism through which to examine and analyze the work of said officers, particularly if their are allegations of racial biases, which are unconstitutional.
Several years ago I remember speaking with a young district attorney in Essex County, Massachusetts. She told me that, basically, the vast majority of cops were good people. But in any organization, there are always a few rotten apples in the barrel. She intimated to me that issues of over-aggressive policing, unnecessary use of force, and police brutality, particularly in a racial context, did occur. Given this reality, it seems prudent to have an established mechanism through which citizens can review the actions of the police in their community.
Trump is facing a nation deeply divided and deeply in debt. Regardless of his future course of action, he will find an American public, on both sides of the aisle, which is ready to rethink the “Drug War” and the massive damage it has done to our nation and the world at large.
