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There’s nothing theoretical about the civil liberties crisis of our time.

While it may take a bit of imagination to figure out what we should be worried about when it comes to government surveillance, you have to deny reality to ignore the devastation of the so-called War on Drugs, which has left America with the largest prison population in the world by far.

“Today there are more African-Americans under correctional control — in prison or jail, on probation or parole — than were enslaved in 1850, a decade before the Civil War began,” Michelle Alexander, the author of The New Jim Crow, said. “There are millions of African-Americans now cycling in and out of prisons and jails or under correctional control. In major American cities today, more than half of working-age African-American men are either under correctional control or branded felons and are thus subject to legalized discrimination for the rest of their lives.”

Federal funding creates perverse incentives for local authorities to prioritize drug arrests. Harsh sentencing requirements and the social stigma of a drug conviction combine to create what Alexander calls a “caste system.”

But in the last few years some progress has been made in reshaping a debate that has been calcified since the 1970s. A bipartisan consensus lasting three decades seems to be finally cracking, thanks to collaboration between a willing president and Republicans who pride themselves on an independent civil libertarian streak.

Even journalist David Dayen — who often chronicles governmental reform with a cynical eye — is impressed by the latest developments coming out of Washington:

The Guardian article Dayen links to begins like this:

America’s war on drugs took a major step toward ceasefire on Thursday, as a bipartisan group of senators voted to move forward with the first substantial cut in mandatory minimum sentences, and as the Justice Department made it known that President Obama is looking to commute the sentences of more existing prisoners.

Legislation proposing dramatic reductions in federal prison terms for non-violent drug offenders, and an end to the hundred-fold disparity between crack and powder cocaine sentencing advanced through the Senate judiciary committee by a vote of 13 to five.

The support of a number of right-wing Republicans, including Rand Paul, Mike Lee and Ted Cruz – who joined as a last-minute co-sponsor – gives significant momentum to a full Senate vote on the bill, which is mirrored by a House proposal from Republican Raul Labrador and Democrat Bobby Scott.


Sentencing reform combined with commutations for non-violent offenders could mean literally freedom for thousands. They would still be returning to a world of few opportunities where a relapse could easily send them back behind bars. But some progress is being made to ease the systemic way society has criminalized addiction.

The “Ban the Box” movement seeks to end the discrimination against felons by making it illegal to ask job applicants their arrest or conviction history. And Obamacare could make drug treatment more widely available and affordable. “I don’t think there’s another illness that will be more affected by the Affordable Care Act,” Dr. Thomas McLellan, former deputy director of the White House Office of National Drug Control Policy, recently said.

President Obama has said that the legalization of marijuana in Colorado and Washington offer crucial opportunities to assess the effects of altering drug policies. He told The New Yorker‘s Dave Remnick, “It’s important for it to go forward because it’s important for society not to have a situation in which a large portion of people have at one time or another broken the law and only a select few get punished.”

Some think the president could seize the opportunity presented by a majority of Americans embracing pot legalization for the first time by moving the drug off of Schedule I of the Controlled Substances Act, effectively decriminalizing it.

“First of all, what is and isn’t a Schedule I narcotic is a job for Congress,” Obama told CNN’s Jake Tapper.

However, it appears the attorney general could do it.

The president reasserted to Tapper what he told Remnick: Marijuana is not more dangerous than alcohol — but that doesn’t mean it’s harmless.

“I stand by my belief, based, I think, on the scientific evidence, that marijuana, for casual users, individual users, is subject to abuse,” he explained, “just like alcohol is and should be treated as a public health problem and challenge.”

Obama’s argument for reforming drug policy is firmly rooted in the same critique Michelle Alexander makes against the War on Drugs.

“But as I said in the interview, my concern is when you end up having very heavy criminal penalties for individual users that have been applied unevenly, and in some cases, with a racial disparity,” he explained.

While a willingness to experiment with marijuana policy represents some hope for larger reforms, journalist-turned-creator of The Wire David Simon fears it’s a dead end for reform.

“The surest way to ensure the continued abuse of people of color under the auspices of the drug war is to reduce or eliminate any corresponding threat to white Americans,” he wrote on his blog last year.

“One in three African-American boys born today will be imprisoned at some point not because of marijuana enforcement, but because of the entirety of the drug war — and only by dealing with all of drug enforcement and its subtext of racial and class control will that trend ever abate, much less be reversed,” he wrote. “Only by addressing political reform to the use or trafficking of those drugs that drive the majority of prison sentences for drug crimes will the country begin to address itself to the mechanism that has put 2.3 million Americans behind bars and made us the jailingest society in human history.”

Pot legalization and sentencing reform once seemed untenable. Now they’re low-hanging fruit.

But for the War on Drugs to truly end and its devastation to be reversed, far more needs to be done.

Photo: Daniel Oines via Flickr

Photo by Mike MacKenzie

Reprinted with permission from MediaMatters

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