An Amnesty for Prisoners of the War on Drugs

Reducing the length and frequency of drug-related incarceration going forward for new cases, however welcome, doesn't do anything about the large population of drug users already stuck in our prisons.
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Atty. General Eric Holder's long overdue realization that "too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason" was an important step toward a national recognition that our decades long war on drugs has been ineffective, expensive, and cruel. As bipartisan support grows in Congress for overhauling U.S. drug laws, Holder has just ordered Federal prosecutors to remove any reference to quantities of illicit drugs that trigger mandatory minimums and to apply this provision to pending drug cases, where the defendant has not yet been sentenced.

But reducing the length and frequency of drug-related incarceration going forward for new cases, however welcome, doesn't do anything about the large population of drug users already stuck in our prisons. Many non violent drug offenders are still serving out long terms under the now discredited mandatory sentencing policies. Most of these are young minority men with children, drawn from our poorest urban communities.

To date little has been said about how we can both dispense justice and save money by reducing the size of this key population. As of Jan 1, 2012 there were over 1.8 million drug law offenders under the control of the U.S. criminal justice system; 320,000 behind bars (in State and Federal prisons) and an additional 1.5 million under community supervision on parole and probation programs -- where administrative violations, missed appointments, and failed drug tests send hundreds of thousands of drug offenders back to prison. The total annual cost of keeping these millions in our criminal justice system is now over $12 billion per year.

The U.S. is not the only country in the world that has filled its prisons with low-level drug users and dealers -- countries as diverse as Brazil, Thailand and Russia have followed the U.S. drug war example -- but the scale of the U.S. prison population is unique.

Now that the White House has acknowledged the fundamental wrong-headedness of its own mass incarceration of drug users, what should be done about the failed war's victims who are still in prison?

One proposal immediately leaps to mind: declare a blanket amnesty or pardon for all drug war prisoners currently serving time in prison or on parole for non-violent drug offenses.

The procedures by which a large scale amnesty or pardon could be achieved will be complex, and would differ from state to state. At the federal level, where the largest proportion of prisoners are drug offenders, President Obama could issue pardons or use his executive release powers for minor drug law offenders -- actions that would serve justice and save money -- while of course ensuring that those with violent histories who may pose a risk to the community, are adjudicated separately. NY State has been cutting back its mandatory sentences for drugs for several years, reducing its prison population by 24 percent since 1996, and has successfully employed a re-sentencing process for over 1,000 non-violent drug offenders imprisoned under the old laws.

While amnesty would be a huge step in the right direction, we will need to do more -- most crucially, to re-invest the savings from reduced incarceration into effective re-entry processes that are not part of current parole processes, which now put so many back in prison. These funds should be directed into local support for re-entry and new community-based support programs that help drug offenders make amends and become welcome in their home communities again. Such restorative justice strategies have been proven to be effective and cost far less than the high rates of relapse and recidivism of drug users that we have now.

We also must systematically remove the many legal restrictions that make it so difficult for former drug felons to establish a home, get an education or a decent job, and to become productive citizens again. For example, we could offer to expunge their drug offense records when they succeed at these positive steps, thus meeting the true intent of the U.S. "second chance" act.
With this new approach we can also productively involve the very communities most affected by the mass incarceration of drug users -- in New York City, for instance, six communities account for over 85 percent of all city residents in State prisons. By investing in these same communities we can enable them to move from being "collateral damage" of the drug wars, to becoming the source of help for reconstituting a meaningful life for its once -- imprisoned members. These are the very communities which have the greatest motivation, deep personal experience, and (often) underutilized talent to help deal with their own members facing chronic drug and mental health problems -- many of them worsened by the brutalization of the prison system. A general amnesty for incarcerated non-violent drug offenders would open the way to a new approach based on truth and reconciliation principals and restorative justice methods, instead of retribution and punishment.

Legislators, officials and advocates are now, quite rightly, looking at drug law sentencing reforms that consign the war on drugs to history. We call on these same groups to also take action to bring some delayed justice and a chance for those caught up in that war over the last 30 years to have their lives back.

Ernest Drucker is the author of A Plague of Prisons and teaches at Columbia Mailman School of Public Health and John Jay College of Criminal Justice CUNY.

Mike Trace was formerly the UK Drug Czar.

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