A Truce in the War on Drugs
President Nixons War on Drugs.
Now that American prisons are swollen to capacity with thousands of non-violent, low-level drug offenders, public officials — like powerhouse U.S. Senator Richard Durbin (D-IL), the majority whip, and even some judges — are shifting their attitudes about the War on Drugs.
Many of the inmates have addictions and many have been given harsh punitive sentences, including life without parole, after being charged with possession of small amounts of crack or powder cocaine, heroin or methamphetamine under laws established decades ago.
This growing number of officials are currently meeting around the country to rethink the drug war while modifying policies and revising procedures for charging and sentencing offenders under old drug laws.
All this is done in a drastic attempt to reduce the enormous costs to taxpayers of the criminal justice and prison systems while trying to rectify the disproportionate number of African Americans and Latinos locked behind cold steel bars.
U.S. Senator Dick Durbin, at Northwestern Law School Rethinking the War on Drugs symposium. Photo by Mary C. Piemonte.
Senator Durbin’s Discovery Moment
Making the same speech at two separate events earlier this year to rooms full of local and federal judges, attorneys, law students, journalists, policy makers and others, Durbin noted that the War on Drugs began with former U.S. President Richard M. Nixon more than 40 years ago as he explained that the purpose was to halt the flow of illegal drugs into America’s communities to “destroy the market for drugs by preventing new addicts and rehabilitating those already addicted.”
However, “four decades, 45 million arrests and a trillion dollars later, we’re still far behind from where we need to be,” Durbin said.
“And now, America is home to about five percent of the world’s population and 25 percent of the prison population in the world.”
Only by one measure has the War on Drugs had “spectacular results,” he added.
“It has created an unprecedented growth in the population in American prisons and the public budgets that support them.”
Durbin said in 1980 there were about 24,000 inmates in America’s federal prisons and that number had held steady for 30 years.
But in the mid-1980s, the War on Drugs dramatically expanded because the U.S. Congress and state legislators started passing laws that were deemed “tough on crime.”
And many states, he said, also reduced or eliminated parole for many offenses, which meant “the tougher, longer new prison sentences would be served virtually in full.”
Since 1980, Durbin said America’s federal prison population has increased nearly 500 percent. And the prison system today is “dangerously overcrowded,” operating about 40 percent over capacity. The situation is even worse at high security federal prisons which are nearly 50 percent over capacity, he added.
The nation reached this point, according to Durbin, because many politicians “who had the best of intentions” took the “safe way” and voted for mandatory minimums sentences and “never looked back.”
“Some of those intentions were undermined, however, by a lack of knowledge, especially in the beginning, about the policies that work and those that don’t,” he said.
Durbin said fear also played a part in the prison crisis. Many politicians for decades “have been afraid of being labeled soft on crime.”
In a brief interview after an event at the Union League Club of Chicago on March 31, Durbin said he was all for the War on Drugs at first.
“Oh sure I was. Almost everybody was,” he said.
But later he changed his mind.
“When I looked at the evidence,” Durbin said he decided “we went too far and we didn’t achieve the goal we wanted. And we’ve got to step back now and take a fresh look at it. What might have seemed like a good idea 30 years ago might not be a good idea today. Let’s be honest enough to make that judgment,” he said.
In an attempt to rectify the long term crisis playing out in the prison system, Durbin introduced the Smarter Sentencing Act that was passed out of the Senate Judiciary Committee but has not cleared either the full Senate or the House of Representatives.
Durbin said the new Sentencing Act includes changes that would “reduce prison costs and overcrowding and make Americans safer.”
The law will “reduce, but not eliminate, certain mandatory sentences for nonviolent drug offenses, and would also allow federal judges to waive certain mandatory minimum sentences when individual circumstances warranted,” he said in an interview after his speech at Northwestern Law School in mid-February.
Durbin added that under the new sentencing act, mandatory minimum sentences will also be cut in half.
“Let’s take the most serious nonviolent drug offense. It’ll have a maximum sentence and it will have a mandatory minimum sentence. Right now, for the most serious one, the mandatory minimum is 20 years. We cut that in half to 10 years. So the judge can go anywhere from 10 years up, instead of from 20 years up. So I think the low end of it, where there are less serious crimes and better cases where you can make the argument that this person is not likely to commit another crime, the judge will be able to give shorter sentences.”
Additionally, Durbin said a new maximum-security prison has now been commissioned to be built in Thomson, IL, to handle the current prison overcrowding situation in existing penitentiaries.
Federal Judge Ruben Castillo, at Northwestern Law School Rethinking the War on Drugs symposium. Photo by Mary C. Piemonte.
Judge Castillo’s Change of Heart
In two exclusive interviews this year, in person and on the phone, in February and March, U.S. Chief Judge Ruben Castillo, the first Latino chief judge of the Northern District of Illinois — the third largest district in the United States — said the War on Drugs has been a failure.
“I think we have to acknowledge that. Because the price of drugs has not changed over the course of 30 years. It also has resulted in the incarceration of many low-level nonviolent drug couriers. And so I really believe we have to rethink the War on Drugs. And I hope that the country will realize that we’re making fundamental mistakes,” he said after his speech at a conference at Northwestern Law School on February 20.
Castillo, a former vice chair of the U.S. Sentencing Commission, said it took a long time for policy makers to determine how to handle the new problem.
“I found out when I was on the Sentencing Commission that once you set penalties high, it takes 10, sometimes 20 years to have people figure out that they don’t need to be that high. And so there’s a huge price we pay as a country when we set the penalties too high. Because they cannot be reduced very easily in today’s political world,” said Castillo.
A former prosecutor, Castillo agreed with U.S. Attorney General Eric Holder “that we can’t incarcerate ourselves out of this country’s drug problem.”
During the phone interview on April 17, Castillo said he was all for the drug war at first.
“I didn’t feel that way at the beginning in the 1980s. I thought that maybe we could win with a pretty severe approach,” Castillo said. “But over time, I would say probably by 20 years later, sometime in 2000, I began to see that the war was a failure because one, the price of drugs had not gone down. And number two, the use of drugs had not gone down. And I thought we were imprisoning the wrong people. Mainly, people that were being asked to move drugs but didn’t really know a whole lot more than that. They were just couriers. They’re basically people that are just being used while we were sending them to prisons for long periods of time and didn’t have a lot to show for that. So, I would say, that’s when I started duly thinking [about] what we were doing. At the beginning I was more a believer. I was willing to see if this could really rid the country of the use of drugs. And over time, I came to the conclusion it wasn’t working. If after you’ve tried something for 20 years and it doesn’t work — that’s a long period of time. And I just saw that it wasn’t working.”
Castillo added that national leaders’ focus has been too much on the “quantity” of drugs in offenders’ possession at the time of their arrests, which he added “ultimately doesn’t necessarily reflect culpability.”
“And if you’re just being used to transport, then I think it’s a whole different situation than if you’re really a leader in the entire organization. And so, I just think we need to do a better job of distinguishing between the two.”
Additionally, Castillo said that he and most judges think current sentencing laws on the books are too harsh.
“At first I didn’t think that way. But over time, I came to realize that. Probably about the 20-year mark, I started thinking that they’re different times. They’re too hard. And certainly, one-size-fits-all sentencing where you have minimum mandatory sentences — I think those are too hard,” he said during a phone interview.
In the February interview, Castillo said that most judges feel the same way.
“I think most judges think that the sentencing laws right now in the United States are too hard….We realize, not with every case, but with certain cases that they’re just too high. And so we need to be more individualized in sentencing people,” he said.
Additionally, Judge Castillo said he totally supports the Smarter Sentencing Act and hopes that the country will realize that we’re making fundamental mistakes.
“It’s a big sacrifice in the American tax dollar that’s being used in a bone-headed way, which is not very cost effective,” he said. “It’s a big sacrifice of human beings who end up in jail.”
(A longer version of this article was originally published in The Residents Journal).
Mary C. Piemonte is an award-winning journalist and photographer, with 16 years experience covering “the news that matters to people living in impoverished neighborhoods,” and also training dozens of low-income adults and youth in the basic skills of journalism. Mary has also served as a moderator and panelist at events nationwide regarding low-income people and the issues and legislation that affect them.
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