Is This the End of the War on Crime?
Father George Horan, co-director of the Archdiocese of Los Angeles's Office of Restorative Justice, has spent a lifetime watching youngsters do stupid things and, as a result, ruin their lives. He has seen generations of kids graduate from being troubled children to hardened prisoners. And he has grown increasingly cynical about the ability of penal institutions to solve ingrained social problems. Far better, he has come to believe, to sit nonviolent offenders down with their families, teachers, peers, even victims, and force them to come to terms with the consequences of their actions.
Horan, 64, has a ruddy complexion and dresses casually. From his small office in the Sacred Heart Catholic Church in Lincoln Heights, a bleak industrial area of Los Angeles just north of downtown, he works to help delinquent teens, many of them gang members, establish more productive bonds with their communities. When three teens broke into their school a few years back and trashed it, the Office of Restorative Justice persuaded the trial judge to consider a restorative justice solution. The kids had to face their principal and fellow students; they had to pay for the damage; and they had to spend their weekends doing community service at the school—cleaning classrooms, doing basic maintenance work, sweeping autumn leaves. The principal, recalls Horan, took the kids out to lunch, got to know them and encouraged them to attend to their studies. "She said the next year they were the three best kids in the school. What a better result than sending the kids to juvenile hall. They turned their lives around."
Horan is aware of the limitations of this strategy—he tried the same approach when three boys set fire to his church door, but this time the prosecutor insisted on seeking prison terms. Politically, he says, it would be next to impossible for prosecutors to embrace restorative justice for violent criminals. But Horan believes restorative justice models have to play a part in any revamping of America's criminal justice system. "Always, the first step is, the person has to take responsibility for what they did. That's the cornerstone," he explains. "What can a person do to heal the victim and heal the community?"
Meanwhile, extending the first-do-no-harm principles of the restorative justice movement, a growing number of politicians have started to identify sky-high African-American incarceration rates as a civil rights issue that, in tandem with high crime rates in poor communities, serves up a double whammy to already devastated neighborhoods. As a result, they have begun pushing legislation that characterizes the disproportionate incarceration of African-Americans as a problem. Connecticut recently passed a "racial impact statement" law mandating all major legislative proposals for the criminal justice system be studied for their racial impact. Other states, looking for ways to preserve public safety without inflicting the kind of collateral damage on communities that mass incarceration unleashes, will likely follow suit.
No part of the criminal justice system has had more of a racially skewed impact than America's antidrug strategy. Over the decades, millions of young Americans, mainly poor and disproportionately black and brown, have been arrested, prosecuted and sentenced to jail or prison for their involvement with the drug trade. It has been a staggering exercise in futility.
Yet these days, the "war on drugs," which Barack Obama denounced as an utter failure during his presidential campaign, is showing the fragility of old age. At the urging of the Obama administration and top Justice Department officials, Congress is working to eliminate the infamous crack and powder-cocaine sentencing disparities. And over the next few years, the Justice Department's Task Force on Sentencing Reform will likely recommend more proportionate sentencing for many drug offenses.
The era of "Lock 'em up and throw away the key" seems, slowly, to be drawing to a close. And over the next few decades, that will likely have the effect of gradually drawing down the size of the bloated prison population. Even seasoned conservative voices are cognizant of the winds of change.
"My attitude has always been, speed and certainty are crucial aspects of running a criminal justice system, not length of sentence," argues James Q. Wilson, at one time the country's most influential conservative criminologist. "Many sentences could be shortened without endangering public safety." Wilson, who rose to intellectual fame as President Nixon's favorite sociologist and later became known as the philosophical father of the Broken Windows policing theory, doesn't regret his role in developing ideas that helped contribute to America's mass incarceration experiment. But he also doesn't think that mass incarceration is, or should be, an end in itself. If there are alternatives that have at least as powerful an effect on reducing the crime rate, Wilson, an empiricist, believes they should be tried. Parole and probation systems should be reformed, he argues, so that violators are dealt with quickly and minor violators, such as those who fail a urine drug test, receive "a swift but very short penalty—a weekend in jail, a week in jail. It need not be returning people to serve a full prison term."
Changes in drug policy don't stop with shortening sentences, however. The administration recently lifted the ban on federal funding for needle-exchange programs—long a bugbear of drug-treatment and public health professionals. And for the first time since the 1970s, marijuana legalization movements are gaining traction at the state level. Californians will vote in November on a ballot measure to legalize pot, and preliminary polling indicates it could well pass. The initiative is buttressed by a number of politicians, like Assemblyman Tom Ammiano and State Senator Mark Leno, who have argued that legalizing marijuana would allow California to tax the lucrative market. Other states could follow in California's wake.
"People are now making a lawful income from cannabis here in California and other states," argues 57-year-old Chris Conrad, of the marijuana-advocacy newspaper West Coast Leaf, at a hummus-and-wine soiree to celebrate the opening of the Drug Policy Alliance's swank new downtown San Francisco offices. Conrad is talking about how the medical marijuana industry is increasingly using its clout to push for broader, across-the-board rollbacks of pot prohibition. "They can put that money back to invest in change. The idea is, it should be brought under control and tax revenue brought in. The whole financial argument is only going to get better. I think the drug war is fatally flawed, and it's doomed. It's just a matter of time; it could be five years, it could be twenty years. But prohibition doesn't work. It creates crime; it doesn't solve crime."
A few years ago Conrad would have been a countercultural refugee on the hippie fringe; these days, he and his ideas are increasingly mainstream. In fact, the attendees at the party oozed their radical-chic credentials; they were lawyers, doctors, politicians, consultants, businessmen. "The trend is for people to regulate rather than prohibit," asserted Doug Linney, the well-coiffed, sharp-dressed campaign consultant for the legalization initiative. "They see the current drug wars aren't working, especially regarding marijuana. There's an interest in changing it, especially because of the state's finances."
Cumulatively, all of these changes are bearing significant fruit. For the first time since the Nixon era, America's prison population is shrinking. In 2008, according to the Bureau of Justice Statistics, the prison population fell in twenty states; in 2009 it fell in twenty-six states; and that trend is likely to continue in 2010. Moreover, as the number of drug-related sentences has declined slightly, so too has the appallingly high African-American incarceration rate edged slightly downward, off 9 percent from its peak a few years back. The gears of what journalist Joel Dyer, in the 1990s, tellingly labeled a "perpetual prisoner machine"—a self-sustaining interaction of conservative criminal justice lobbies, political opportunism, popular tough-on-crime sentiments, the economic needs of depressed prison towns and media sensationalism—seem finally to have gotten gummed up. Ironically, the federal government, which did so much to shift the country in a more conservative criminal justice direction for nearly fifty years, seems quite content to let the gears stay locked.