Is This the End of the War on Crime?
Most decisions about the criminal justice system are made at the state level. Despite the near-tenfold growth in the population of federal prison inmates since 1980, less than 10 percent of all inmates are serving federal sentences. But the federal government does perform some vital roles: it allocates resources directly (by, for example, patrolling the border and exporting the "war on drugs") and indirectly (by granting money to localities and states to set up antidrug task forces, funding drug and mental health treatment services, and putting more police on the streets). It creates overarching legal parameters within which states must operate (federal drug laws supersede state ones, which means that if California legalizes marijuana, for example, theoretically it would be setting up a conflict with DC). Perhaps most important, the federal government sets the tone for national conversations on crime and delinquency.
When it comes to tone-setting, sometimes what isn't said by federal officials is as important as what is. Over the past couple of years, President Obama's drug czar, ex–Seattle police chief Gil Kerlikowske, has chosen not to follow his predecessors with regard to medical marijuana. Whereas John Walters, Bush's drug czar, testified across the country against state medical marijuana laws, Kerlikowske has stayed silent. The effect, says Drug Policy Alliance executive director Ethan Nadelmann, has been to send a "green light to the states that they could have the freedom to go their own way on this." Kerlikowske, Attorney General Eric Holder and President Obama himself steer clear of talking about the "war on drugs," and they generally don't use sound bites to trumpet their "tough" credentials when it comes to tackling the complex problem of crime.
But what is being said is also fascinating. "Too many of our citizens have come to have doubts about our criminal justice system," Holder told a Congressional Black Caucus symposium on June 24, 2009. "We must be honest with each other and have the courage to ask difficult questions of ourselves and our system. We must break out of the old and tired partisan stances that have stood in the way of needed progress and reform. We have a moment in time that must be seized in order to ensure that all of our citizens are treated in a way that is consistent with the ideals embodied in our founding documents. This Department of Justice is prepared to act."
Indeed, in a series of key speeches over the past year, Holder has delivered a commitment, unprecedented in recent decades, to use the might of the Justice Department to ensure a fairer, less coercive criminal justice system. Addressing the NAACP in July 2009, the attorney general talked of the devastating harm that harsh drug sentences have caused in poor communities. "It is not justice," he declared, "to continue our adherence to a sentencing scheme that disproportionately affects some Americans, and some communities, more severely than others."
The previous week, he told an audience at the Vera Institute of Justice, a New York–based think tank, that "getting smart on crime requires talking honestly about which policies have worked and which have not, without fear of being labeled as too hard or, more likely, too soft on crime. Getting smart on crime means moving beyond useless labels and instead embracing science and data, and relying on them to shape policy. And it means thinking about crime in context—not just reacting to the criminal act but developing the government's ability to enhance public safety before the crime is committed and after the former offender is returned to society." Taking their cue from Holder, a slew of top officials have begun revamping the language they use to discuss crime and punishment.
As Kerlikowske explained to The Nation in March, shortly after he returned from a UN Commission on Narcotic Drugs meeting in Vienna, the country should not continue to think of drugs merely as a public safety problem but should start to see them as a public health problem. "My colleagues, I never heard them talk of a war on drugs," he said. "I've heard elected officials talk about it, but not police chiefs, sheriffs or prosecutors. They talk about it with the complexity the problem deserves."
In reshaping the national discourse on drugs, Kerlikowske touts his law enforcement credentials. He's a tough guy, a strong policeman with thirty-seven years on the job, and he knows he commands respect. "For me, it's a little bit like Nixon going to China," he explains. Kerlikowske has "very little concern about being labeled soft on drugs." And so he wants to talk about being "smart on drugs," instead of merely "tough." In fact, when he explains his mandate, the country's drug czar is more comfortable using the language of public health professionals than political posturers. "The 'war on drugs' was a simplistic answer to this really complex problem," he says. "We have to look at talking about addiction as a disease rather than a moral failure or saying people should just stop using drugs."
For the first time in more than forty years, criminal justice trends are starting to move in a sensible direction. At the local and state levels, fiscal necessity is forcing a rethink when it comes to incarceration strategies. And at the federal level, the politics that allowed George H.W. Bush to batter Michael Dukakis with images of Willie Horton, Bill Clinton to sign an execution warrant on the brain-damaged Ricky Ray Rector and George W. Bush to push glibly for more teens to be tried and sentenced as adults is taking a back seat to smart, holistic thinking.
"Everyone I talk to around the country has been affected by drugs," Kerlikowske says. "But it's not talked about the same way as if you had a member of your family having cancer—or even alcoholism. When I look at the drug problem, what it costs in healthcare costs, police-community relations, the Southwest border, foreign relations—every one of those things, drugs are a part. If we could recognize how inextricably linked to all of these issues drug consumption and addiction is, if we could work to address it with the complexity it deserves, that would make more sense than holding a press conference and showing a ton of cocaine or five people led out in handcuffs."
Of all the changes in tone brought about by Obama's election, in the long run few will be more significant to the country's well-being than those around criminal justice and drugs. Without a whole lot of fanfare, the administration is laying the foundations for a new criminal justice system model that might, conceivably, end America's morally disastrous, fiscally ruinous, four-decade-long experimentation with mass incarceration.