October 29, 2008
Drug Policy Conference
One of the few facts of which I am certain in the context of our discussion of the current drug policies in this country, is that no new arguments are available to employ in support of or in opposition to them. 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 of which I speak is between the perspective, the guts of which are that a genuinely free society maximizes the rights and freedoms of its citizens allowing them to think, say and act as they please as long as they do not harm or injure their fellow citizens. The other perspective emphasizes the claim that a stable social order cannot 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 18th century Scottish philosopher David Hume called the perpetual struggle between the liberty of the individual and the authority of the state. And what I cannot emphasize too much is that this is not a war between the armies of good and evil. Much too often, too many defenders on both sides of this conflict who are persuaded that truth and justice are own their side 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 lecture on "Two Concepts of Liberty", "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." (1966 printing, p.54) The critical urgency of our present situation is that the contest to win the minds of our fellow citizens is dressed in the new clothes of our moment in history which means that we can draw inspiration from the past, but not specific answers and solutions. We are, therefore, participating in a contest to win the opinions and sensibilities of our fellow citizens and we must be ever mindful that despite the very frequent changes in the mood of the public, that the beliefs and values, or opinions of the people in a society that enshrines rights and freedoms in the machinery of government, are the ultimate authorization of the policies of that government.
I began my career as a practitioner in criminal justice on February 1, 1979 as an adult probation officer in Brazoria County. Although my academic credentials included a Ph.D in philosophy from a British University, my knowledge of criminal justice was confined to readings and the teaching of a university course on the justification of punishment. Hindsight obliges me to recall my willing participation in a process that sent many young adult offenders, mostly males, to prison from 2-10 years for possession of 2 ounces or more of marijuana. A non-sentimental trip down my lane of memories from February 1, 1979- December 1, 1985, unleashes some genuine shame and guilt regarding the ease with which I made recommendations to prosecutors and judges to impose jail and prison sentences on a large group of almost exclusively non-violent users of illegal substances and some insignificant pack mules in the delivery of drugs. In short, I was one of the players in a very serious game in which the winners destroyed and permanently injured the losers. During this same block of time in my career, I can truthfully credit myself with some real and persistent efforts to assist a large number of substance abusers. Using the large amount of authority delegated to me by the District and County courts, I was supervising felony and misdemeanor probationers, most of whom were males, ages 17-30's and the majority of offenses for which they were granted probation involved alcohol, heroin, cocaine, methamphetamines and marijuana. The scarcity of quality substance abuse programs with a track record of a substantial degree of success and skilled counselors whose qualifications were more than the status of an ex-addict were major impediments, but much positive assistance was provided by the V.A. hospital in Houston, Cenikor Foundation in Houston, local groups under the auspice of the Houston based Palmer Drug Abuse Program and a few trained substance abuse counselors. During this time I was also confronted with outbursts of anger from some probationers and attended the funerals of several who committed suicide or were killed by gunfire or knives during a drug transaction. Being called a worthless and rotten son of a bitch by a young man high on methamphetamines is not a pleasant experience nor is attending the funerals of young men who were in the prime of their lives.
On December 1, 1985, I began my tenure as the Director of the Adult Probation Department in Brazoria County. By this time, I was coming to the realization that something was fundamentally wrong or even hypocritical with a process, the ostensible purpose of which is to re-direct many lives in a positive direction was actually sending numerous non-violent offenders to jail and prison, effectively destroying their lives, causing havoc in their families, leaving them with the permanent scar of a criminal conviction and all of the collateral consequences of being an ex-convict. Every judge in the state of Texas trying felony and misdemeanor criminal cases was obliged by some draconian policies in our Penal Code regarding illegal substances that mocked the ideal of assisting a very large group of offenders to achieve the status of autonomous moral persons who freely accept their responsibilities as citizens of our communities. I retired on February 1, 2004 and when I look back on my accomplishments of 18 years, I can only hope that the many programs I created with the support of seven elected judges and the hard work of some dedicated staff have yielded a harvest of positive results in the lives of numerous offenders that outweighs the amount of harm that I was instrumental in inflicting in many lives early in my career. The luxury of time to read and reflect on close to 30 years of direct interaction with several thousands of probationers and prison inmates enables me to feel confident in the following observations and assertions.
I am enormously proud to be an American citizen and would not choose to live in another country. I am, however, unequivocally ashamed of the indisputable fact that during the last 30 years our criminal justice policies, federal and state, have led to our international notoriety 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 for doing justice are the seriousness of the offense and the criminal history of the defendant. Making no claim to originality, we have been beguiled by a drug addiction more powerful than all the drugs combined, namely, vengeance. This is a bitter pill and I am persuaded that honesty obliges us to swallow it. Quite often during my career, I was the target of some pejorative remarks, particularly by prosecutors, that I belonged to the species of liberal weenies who are soft on crime. For many years, however, I have consistently maintained some beliefs most of which my students in prison find acceptable. I do not believe in or hope for the abolition of all prisons. I do not believe that there is a treasure in the heart of all criminal offenders waiting to be discovered. A relatively small number, as the result of their choices are incorrigibly mean and evil. I believe that far too many decades long and life sentences are imposed in our courts, but I believe in the hard coinage of punishment for most offenders who murder and commit acts of both potential and actual violence and that some offenders should be incarcerated for life without the possibility of parole.
The declaration of war against drugs has responded to and created some moral panics in our society leading to the still widely held belief that the users of drugs deemed illegal are enemies to be conquered and destroyed. When you fight a war, the mission is to kill and maim your enemies. That is exactly what we have accomplished. There is a wealth of scholarly bickering about the feasibility of determining the actual number of non-violent drug offenders in our federal, state and private prisons. I am confident that no informed person can produce evidence to inflict any serious damage on the claims of Michael Tonry in his book THINKING ABOUT CRIME: SENSE AND SENSIBILITY IN AMERICAN PENAL CULTURE: " 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." (Pp.10-11)
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, i.e., the opinions of the people, their beliefs and values approved the decision in favor of going to war. 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 states fiscal resources. Many and very vocal groups of dissenters, using the technology of mass communication are focusing on some items for an agenda for change, specifically, 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 to drug addicts with the goals of improving health and reducing crime.
In this national and highly divisive crisis it is critically important for all of us, especially elected policy makers in Congress and state legislators, to be reminded that we share a common history in which heretics were burned, the institution of slavery was ordained by the Creator, homosexuals were prosecuted and jailed for lewd and un-natural conduct and males dominate females because nature has endowed them with emotional and intellectual superiority. All of these chapters in our history are now condemned as violations of basic human rights, but in their moments of time were approved as timeless and immutable truths. No one person is qualified to provide a detailed blueprint with an exit strategy from this ideological conflict and all of the items that should be on the agenda for change. I will, therefore, conclude with issuing an admittedly radical and heretical, but feasible challenge to the administrator's of our nation's criminal justice machine and make a recommendation to the next President of the United States.
The Uniform Crime Report of 2007 compiled by the FBI contains the following data. Of the 14,209, 385 reported arrests, 1.8 million or 13% were for drug abuse violations. 872, 721 of those arrests for drug abuse violations, or 47.5% were for marijuana and of that number 775, 138, or 89% were for possession, the remaining 97, 583 involved the sale and manufacture or growing. Three of every four persons in the group of 872, 721 were under the age of 30. 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. The radical proposal which I believe is realistically feasible would retrain the same professionals who administer our criminal justice systems to create some Pre-Prosecution Agreements which still send a message of societal disapproval, but leave no permanent scars. The specific guts of the proposal are: all persons arrested for possessing small amounts of any illegal substance, excluding the sale and manufacture, having no criminal history, shall be granted a one time only Pre-Prosecution Agreement not to exceed one year. Within 30 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 30 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 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.
Regarding the recommendation to the next President, since November of 2000 in three published articles, I have called for the creation of state and federal commissions to re-write our drug laws in the framework of public health and safety. I am greatly encouraged by the October 12th Op-Ed in the Houston Chronicle by Lee Brown, "Getting to the Root of Crime." Houston's former police chief and mayor has re-issued his 1990 plea that the President convene a crime panel to ". facilitate a national discourse and congressional action on crime, violence, racial disparities and inequities in the criminal justice system." The word 'drugs' appears in one sentence in Dr. Brown's article and I certainly cannot presume his agreement with any of the specifics of my recommendation. My recommendations are: no person holding an elected public office is eligible for appointment; the members shall include nationally recognized experts in the fields of health care, medicine, pharmacology, drug addiction, criminology, sociology, constitutional law, economics and law enforcement; the presidential marching orders include the requirement that all federal drug laws and policies be re-written in the framework of public health and safety. Another requirement is that the final version of their work contains the recommendation to Congress that all federal inmates in private prisons will be transferred to federal facilities and no federal inmates will be incarcerated in private prisons in the future. Wall Street will be banished from the administration of criminal justice. The collective motto of those companies which reap profits for themselves and their stockholders is,"If we build them, they will be sent." The final condition for appointment is that all members must agree to travel to a pre-selected list of countries that have re-written their drug laws and policies to evaluate their impact on public health and safety.
In closing, during his tenure as Secretary to the House of Commons, Winston Churchill was moved to remark that the moral fabric of any civilized society can be judged by how it treats its citizens who violate the criminal laws. At this moment in our history, I am persuaded that the moral ground on which we stand is not very high and that the judgments of future historians who evaluate us will be very harsh.