Sunday, March 29, 2020

From Behind Bars - Ending Mass Incarceration, Part 1



How Connecticut became a model for prison reform | The Crime Report
Image from "The Crime Report"

By Michael Liebowitz

A Connecticut prisoner for nearly 25 years, Liebowitz is currently housed at Osborn Correctional Institution in Somers, CT.  He is also co-author of "Down the Rabbit Hole: How the Culture of Corrections Encourages Crime", available at Amazon.  Liebowitz is also a regular guest with Todd Feinburg on WTIC AM 1080.  Podcasts of Todd's segments with Liebowitz can be heard, here.


Introduction


I would argue that; strictly speaking, ending mass incarceration per se, should not be the goal.  Rather, what we ought to seek to accomplish is a significant reduction of criminal behavior.  After all, if we simply set out to eliminate mass incarceration as our primary goal it would be simple enough to achieve: just open the prison gates and release the bulk of the population.  I highly doubt, however, that this “solution” would be palatable to the general public.
The questions are:  Are there policies we can implement that will dramatically reduce crime and if so, what are they?  I firmly believe the answer to the first question is yes and the purpose of this plan is to articulate and propose such policies.  Crime reduction will undoubtedly require a bold and comprehensive plan.  And while due to my lack of resources I am unable to provide all the details I would like to (such as cost, for example), I still think my plan meets these criteria.

It consists of the following:
·        End the War on Drugs
·        Widespread Implementation of Functional Family Therapy (FFT) and Multisystemic Therapy (MST); Hold Juveniles Accountable
·        Widespread Implementation of Evidence-Based Programs
·        Widespread Implementation of Core Correctional Practices
·        Remunerate Correctional Officials and Employees Based on Results, i.e., Reduced Recidivism
·        Privately Fund a Significant Portion of Reform Programs
Let’s examine each of the plan’s components in turn.

End the War on Drugs

          I argued above that our primary goal ought not to be ending mass incarceration, but to reduce crime.  I pointed out the ease with which we could shrink the prison population by releasing prisoners en masse, but that the public would likely see this as undesirable.  There is one type of offender, however, who should be released and one type of crime that should be removed from the book: drug offenders and drug offenses.  These two reforms would by themselves significantly reduce the prison population.  Ending the “war on drugs”, however, would not only do this, but it would also reduce crime, and not just crimes related to sales and possession.
            While there are both ethical and constitutional reasons to end this war, here I’m going to limit myself to a pragmatic, i.e., consequentialist argument.  Before getting into that, however, let’s take a look at the history of the drug war and some of the reasons for its commencement.
            Surprising as it may seem to some, drugs were perfectly legal for a large portion of this country’s history.  Although considered “evil” and “immoral”, their sale and consumption did not become the object of prohibition until the late 1800’s.  Even then, however, it was only some states, not the Federal government, that banned them.  The federal prohibition would have to wait until the 20th century.
            So, what changed?  For starters, the late 1800’s were marked by high degrees of moralism and religiosity, with many calls for “vice” laws aimed at such “immoral” behaviors as gambling and prostitution.  This was also a period of rapid changes in society characterized by large waves of immigrants and the development of big cities.  These changes led to a predictable backlash from traditionalists wishing to maintain the status quo and part of this backlash was the implementation of drug laws.  Also, one must not underestimate the racial impetus for these laws.  There was a widespread fear of Chinese opium dens, while later on, cocaine was associated in the public mind with blacks and marijuana with blacks and Mexicans.  Noticeably absent from these reasons is evidence that society was in great danger from these substances.
            The Federal government’s first major foray into drug interdiction came in 1914 with the passage of the Harrison Act.  Ostensibly a tax law, its real purpose was to end the drug trade.  It applied to both opium and coca leaves, as well as their derivatives.  But it was ultimately the Supreme Court’s interpretation of the Harrison Act in Webb v. United States (1919) that made drug use a crime and from then on linked the Federal government to drug laws.
            Webb was a doctor who prescribed morphine to addicts in order to prevent them from experiencing withdrawal.  This was a practice, the Court ruled, that Harrison did not allow.  This may be looked upon as the second major shot in what would become the “war on drugs”.
            Next came the Federal Bureau of Narcotics, which was established in response to the widely held and false belief that drug use caused criminal behavior.  Then, in 1961 the Single Convention on Narcotic Drugs set forth the idea that drugs posed a threat to humanity.  Following this, in 1971 President Nixon declared the war on drugs.  With the creation of the Drug Enforcement Agency in 1971, the drug war was cemented as a permanent fixture in American life.
            So what have been the consequences of this war?  Consider the following:
·        More than a trillion dollars have been spent.
·        $100 billion a year is spent fighting this war, but supply, production and use have not been diminished.
·        The U.S. alone spends $51 billion a year.
·        The U.S. has the highest incarceration rate in the world.
·        Almost 500,000 people are serving time for drug offense in the U.S.
·        Prohibition has led to contaminated drugs and no way to know the strength of those drugs.

             As Lawrence M. Friedman wrote in “Crime and Punishment in American History”, “The prisons are jammed top to bottom with men and women convicted under drug laws.”  Is this really the only way?  I don’t think so.
            Ending the war on drugs will likely lead to a substantial reduction of the crime rate.  If drugs were completely legalized, “crimes” such as sale and possession would be immediately eliminated.  Also, the end of prohibition will lead to a large reduction in the price of these substances, thus crimes committed to finance expensive drug habits; crimes such as robbery and larceny, for instance, will be rendered almost entirely unnecessary.
            In my view the most serious crimes associated with the drug war are those that result from the competition for control of the all-too-lucrative black markets.  From bosses of international cartels to low-level gang members, a wide variety of criminals have taken part in these battles.  Who knows how many people have been assaulted, robbed, kidnapped, shot or killed as a consequence?  And how many of those were innocent bystanders; “collateral damage” of this war?

           While ending the drug war will undoubtedly diminish these types of crimes, I wish I could be confident of a more robust reduction.  The reason I’m not is because I deem it unlikely that those who currently profit from the drug trade will suddenly get nine-to-five jobs, once the illegal drug trade is no longer an option.  It seems more reasonable to suspect that they’ll find or create new illicit ways to make money.  After all, the Mafia didn’t retire with the end of alcohol prohibition.  Nonetheless, as we’ll see, there is some historical evidence (also from alcohol prohibition) that ending the drug war will cause a large drop in violence.
            It should also be noted that when freed from having to pursue petty criminals, dealers, and addicts police will be able to focus their efforts on more serious offenders.  This is likely to put another salient dent in the crime rate, in addition to those already mentioned.
            In our country’s history, the closest analogy we have to the drug war is unquestionably alcohol prohibition.  In 1919 Congress ratified the 18th amendment and then passed the Volstead Act outlawing the manufacture and sale of alcohol in the U.S.  With this prohibition came a high-crime era with gangs fighting over the illegal alcohol markets.  Volstead was passed because people correctly believed that alcohol influenced violent behavior.  However, it soon became obvious to most people that the “cure” was worse than the disease.  (This is similar to the fact that while drugs can certainly be harmful, outlawing them has caused more problems than does their use.)
            Recognizing prohibition’s dismal failure, in 1933 Congress repealed the 18th amendment and the Volstead Act.  Did the world come to an end? Were there dire consequences?  No, but there was at least one positive outcome.  Criminologist Anthony Walsh notes; “The homicide rate started a steep climb after the Volstead Act … was passed in 1920 (sic) as gangs fought over the lucrative alcohol market.  The rate started to fall with the repeal of the Volstead Act in 1933, which effectively removed criminals from the alcohol business”.
            Why haven’t we learned from history?  Why has the war on drugs lasted so long with apparently no end in sight?  I believe this has more to do with some misconceptions about drugs than it does with actual evidence.  Let’s examine several of these misconceptions.
·        Drug use causes crime

In 1961 the American Medical Association and the American Bar Association issued a report in which they concluded that the psychological and physical addiction to drugs, combined with the high cost of those drugs, is what leads to crime; not drugs themselves.  Also, numerous studies have shown that drug use does not cause crime, although it may lead to the commission of more serious crimes by those already living a criminal lifestyle.  I don’t think it’s a stretch to assume that the predominant reason drug use results in criminals engaging in more serious illegal activity is the high costs of those drugs, resulting from their illegal status.

·        Drug use causes violence

According to Anthony Walsh, there are three types of violence linked to illicit drugs: systemic, economic – compulsive, and pharmacological.
Systemic violence results from competition between rivals for the drug trade.  Think cartels and gang violence.
Economic – compulsive violence is committed by addicts to support their very expensive habits.  A robbery committed to obtain drug money would be an example.
Pharmacological violence results from the properties of the drugs themselves.  In other words, simply ingesting the drugs makes it more likely that someone will become violent.

The first two types of violence are a result of prohibition, not an argument for it.  As for pharmacological violence, while not unheard of, it is rare.  In fact, the use of alcohol, a legal drug, is far more associated with violence than is the use of illegal drugs.

·        Drugs have harmful effects, such as addiction and overdoses.
Addiction is a serious problem, but most people who try psychoactive drugs do not become addicted to them.  There is simply no reason to suspect this would change if these substances were legalized.
As for overdoses, they are far more likely under a regime of prohibition than if drugs were legal.  This is because at present, a person has no reliable means of knowing the potency of the drugs they are buying, nor with what contaminants the drugs bought were “cut” with.  If drugs were purchased legally, however, both the potency and ingredients would be listed on the package. Furthermore, although undoubtedly partially due to the fact that more people drink than use drugs, there are more deaths per year related to alcohol use than there are related to drug use; with 110,000 and 19,000 respectively.  Yet we don’t see too many people clamoring for a “war on alcohol”.
·        Use will dramatically increase
While I cannot prove this will not occur, the available evidence suggest it will not. Consider:
·        Countries that have decriminalized marijuana use have not seen large increases in prevalence.
·        Many Western European countries have liberalized their drug policies, yet consumption has not dramatically increased.
·        The U.K. government conducted a literature review of the approaches of other countries to drugs.  They found “there is no apparent correlation between the ‘toughness’ of a country’s approach and the prevalence of … drug use.’”
·        In the early 1990’s the Czech Republic decriminalized drug use. Then in 1998 they re-criminalized possession for use.  Advocates of this move believed it would reduce the availability and use of drugs.  Shortly thereafter, “… the Czech government decided to launch a scientific evaluation of the new drug law… The ultimate goal was to measure the expected benefits and to explore potential unintended, negative impacts.”   The evaluation showed that the new policy had no deterrent effect on problem users.  The number of users actually increased.
Many countries have given up their wars on drugs, instead initiating harm reduction policies such as syringe exchanges, drug substitution, and decriminalizing personal use.  The Czechs notwithstanding, most of those countries have not returned to their previous policies (even the Czechs reinstituted decriminalization in 2010).
            Consider Portugal, which “… decriminalized all drug use in 2001, investing instead in public health services for people who use drugs.  This has resulted in some very positive outcomes, such as massive reductions in drug-related deaths and tumbling rates of HIV and hepatitis infections.”
            It is clear to me that the war on drugs must end.  And surprisingly, to me at least, this is a somewhat common conclusion:
America’s approach to drug policy is disapproved of by 70% of U.S. citizens.
Over half of U.S. citizens favor the legalization of marijuana.
“… nine UN agencies have so far called for an end to the war on drugs.”
In 2014 the Global Commission on Drug Policy recommended the
decriminalization of drug use and possession and “experiments” in legalization of illicit drugs.


            So the war on drugs should end, but then what?  While personally I believe that full legalization is the best way to go, it is certainly not the only available option.  For instance, possession and use can be decriminalized, penalties can be reduced, mandated treatment can replace prison, and investment can be made in education and prevention.  Certainly, all of these possibilities are better than what we currently have:  A failed drug war that has led to violence, mass incarceration and broken families, in our country and around the world.

Typed from the author's hand written essay by Linda Johnson and edited by William Boylan.

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