The Human Casualties of the War on Drugs

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Let's stop humoring ourselves, says the filmmaker Eugene Jarecki -- America can no longer afford to keep millions of its citizens locked away. Now he's taking his law-and-order documentary on the road.

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Jarecki in 2006. (Seth Wenig/Reuters)

The year began with a line that was as much a lamentation as it was an astute observation. "The scale and brutality of our prisons are the moral scandal of American life," Adam Gopnik wrote in a trenchant essay in the January 30th issue of the New Yorker. "How did we get here? How is it that our civilization, which rejects hanging and flogging and disemboweling, came to believe that caging vast numbers of people for decades is an acceptably humane condition?"

The year ends with filmmaker Eugene Jarecki touring the country -- visiting prisons, prosecutors' conferences, schools -- showing off his heartbreaking documentary, The House I Live In, an acclaimed collection of interlocking stories about the mournful human impact of America's failed war on drugs. Did you know there is a man serving a life sentence in Oklahoma for "trafficking" three ounces of methamphetamine? Did you know that the rise of privately-owned prisons means that there is now a direct financial incentive to incarcerate people?

The 11 months in between these two statements were extraordinarily fruitful ones in this area of law and justice. And almost all of the change seemed to reflect a growing sense of unease, or even disgust, on the part of America's criminal justice community -- lawyers, judges, politicians, prison officials, etc. -- a sense that the status quo is unsustainable, that America can no longer afford, on either financial or moral terms, to keep millions of its citizens locked up. It's too early to label 2012 a turning point in our war against the war on drugs. But it's not to early to see a definitive trend in that direction.

In June, for example, in a case styled Dorsey v. United States, the United States Supreme Court endorsed new federal sentencing rules that finally reduced the disparity in minimum sentences between crack and powder cocaine offenders. In a 5-4 ruling, over the objections of the conservative justices, the court declared that the new, more lenient rules applied to defendants who had committed their crimes before the 2010 law came into effect but who were sentenced afterward. The ratio is still too high -- 18-to-1, by Congressional decree -- but the 2010 law and the 2012 ruling were significant advances toward a just cause.

That same week in June, an important new federal civil rights lawsuit was filed in Denver, alleging the mistreatment and abuse of mentally ill prisoners at the nation's most famous prison, the ADX-Florence "Supermax" facility in Colorado. The litigation is still in its nascent stage, but the complaint highlights some of what Gopnik and Jarecki each chronicled. If the courts permit the case to proceed to discovery, and thus force the Bureau of Prisons to answer under oath for the conduct of its prison officials, Congress will have little choice but to intercede, the same way the Obama Administration ultimately was pressured into doing something this year about juvenile rape in prison.

Then, in November, voters in California decided finally to minimize the effects of its "three strikes" law -- which is only partially responsible for the fact that the state's prisons are so dangerously overcrowded that the federal courts have ordered the release of thousands of prisoners. Voters there also came close to gutting the state's costly, ineffective and unfair death penalty regime -- nearly 6 million California residents voted to end capital punishment, an extraordinary outpouring of support for an idea which is growing in popularity all over the country.

That same month, voters in Colorado and Washington voted to legalize marijuana for recreational use, a dramatic break from both federal law and policy. Why didn't the Obama Administration immediately crack down? Why do conservatives like Pat Robertson want to reduce the nation's prison population by decriminalizing marijuana? As Robertson said in March, "California is spending more money on prisons than it spends on schools." Last month, a federal judge in Iowa, Mark W. Bennett, who appeared in Jarecki's film, wrote a poignant piece in The Nation. "If we don't speak up, who will?" he asked.

To his immense credit, Jarecki is speaking up. He says his film is no advocacy piece but rather a movie "driven by real people's stories." But the advocacy is there, in virtually every scene. The "real people" Jarecki shows us are complex individuals, generators of sympathy and empathy, outrage and sorrow, sometimes all at the same time. And in that sense, if no other, they are powerful tribunes for the message he seeks to send: Drug crime is caused by drug addiction, drug addiction is a public health matter, and all of us pay in one manner or another for short-sighted policies that treat drug abuse as a matter for the criminal courts.

Jarecki contends that the "war on drugs" is more warlike than any of us are willing to believe and that it has been waged disproportionately for decades on America's poor. If every lawyer, judge, cop, prison guard, politician, policy maker, and economist in America saw this film, fewer families might be devastated by the "lock-em-up" approach to the problem. And fewer taxpayers would have to foot the bill. Here is my interview with him, conducted by telephone on December 23.

COHEN: Your work touched upon many different components of the failed war on drugs. If you had to choose two sentences to describe the film -- two thesis sentences -- what would they be?

JARECKI: Well, you described it as a failed war on drugs and I'm delighted to hear you refer to it that way. If there are two sentences that my film wants to communicate, it's that the war on drugs has failed and must be thrown on the ash heap of history as a kind of accident from which we must move on. The second sentence is that what was wrong with it from the start must be corrected -- namely, that it took a public health concern, drug abuse, and treated it instead as a criminal matter, and by doing so has made an explosion in our prison population of incarcerating the non-violent as through they were violent.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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