In May, 2011, Attorney General Eric Holder invited several cast members from the HBO series “The Wire” to Washington, D.C., to help promote a Justice Department initiative called the Drug Endangered Children’s Task Force. “The Wire,” which aired for five seasons and was acclaimed for its nuanced portrayal of the war on drugs, was a favorite of both Holder and President Obama. Holder jokingly ordered the show’s creators, David Simon and Ed Burns, to produce a sixth season.
“I have a lot of power,” he said. “The Attorney General’s kind remarks are noted and appreciated,” Simon told a reporter. “We are prepared to go to work on Season 6 of ‘The Wire’ if the Department of Justice is equally ready to reconsider and address its continuing prosecution of our misguided, destructive, and dehumanizing drug prohibition.”
Fans groaned in despair: the improbable sixth season now seemed to hinge on something even less likely, an end to the war on drugs. But the exchange was significant for reasons beyond its implications for HBO’s programming. Although the catastrophic consequences of that war are widely acknowledged, there is less clarity about what ending it would entail.
The United States has declared war on cancer, on pornography, and on terror, and the lesson to be gleaned from those campaigns is that, unlike most other wars, those declared against common nouns seldom come to a precisely defined conclusion. The wars on cancer and pornography were really instances in which martial language was used to bolster particular policy initiatives by the Administrations that enacted them. The war on drugs has been a multitiered campaign that has enlisted legislation, private-sector initiatives, executive-branch support, and public will. But it actually looks like a war, with military-style armaments, random violence, and significant numbers of people taken prisoner. It has been prosecuted throughout eight Administrations and has had the type of social and cultural impact that few things short of real warfare do. During the Civil War, more than a quarter of a million Southern men died, creating the phenomenon of a vast number of female-headed households throughout the region. Mass incarceration during the war on drugs has produced a similar phenomenon among African-American households.
Two things happened this month that seemed to signal a drawdown. First, the President commuted the sentences of two hundred and fourteen people, mostly nonviolent drug offenders held in federal prisons. This brought the number of commutations issued during his Administration to five hundred and sixty-two, a total higher than that of the previous nine Administrations combined. Then, last week, the Justice Department announced that it would phase out the use of private prisons, whose growth had been fed by the war on drugs. (There are some twenty-two thousand federal inmates housed in private prisons.) The announcement brought about a thirty per cent decline in share prices for Corrections Corp., a prison-facility-operation company. That drop may be a harbinger of changing fortunes in the for-profit prison industry. Hillary Clinton, during the primary campaign, had said that the federal government should move away from private prisons, and, after receiving an eighty-six-hundred-dollar contribution from a private-prison lobby, gave that amount to charity.
The Obama commutations come as part of a larger, more gradual program. In 2009, the Justice Department issued a memorandum to federal prosecutors announcing its intention to “seek a revision of the law” in order “to eliminate the disparity” between sentences meted out for crack convictions and those for powder cocaine. Federal guidelines mandated stiffer penalties for possession of crack cocaine, which is more common among black drug users, than for possession of the powdered version, which is more frequently used by whites, and as a result African-Americans were incarcerated in disproportionate numbers. The Fair Sentencing Act, of 2010, reduced the disparity in those numbers from a ratio of a hundred to one to eighteen to one. In 2011, the United States Sentencing Commission, an independent bipartisan agency, voted to apply those standards retroactively, which made the cases of twelve thousand prisoners eligible for review and possible sentence reduction. In theory, this reduced focus on nonviolent drug offenses frees up law enforcement to address the violent crime that has always posed a more serious threat.
The same year, Holder announced a clemency initiative, under which as many as ten thousand sentences could be commuted—nearly five per cent of the prison population. The number commuted by Barack Obama will not approach that; each case requires an exhaustive review and so much paperwork that some four thousand attorneys volunteered to assist inmates with preparing applications. Earlier this month, a Times editorial suggested that the President could deploy a liberal interpretation of the 1984 Sentencing Reform Act, which allows for “compassionate release,” to expedite the process. The clause is typically invoked in the case of inmates who are elderly or ill, but in April the Sentencing Commission broadened the criteria to allow for the release of inmates for “extraordinary and compelling” reasons.
There is an additional gesture that the President could make: he could formally declare an end to the war. In 1996, when Bill Clinton announced that “the era of big government is over,” his words were both aspirational and a reflection of policies favored by Republicans and a growing number of centrist Democrats. There’s an emerging and similarly bipartisan consensus for changing the policies that have led to mass incarceration. For a sitting President to declare a conclusion to the most disastrous domestic policy of our time might, even if premature, perhaps mark at least the beginning of its end.
Last year, the Justice Department reported the first decline in the federal prison population in thirty-three years, and a meaningful, if incremental, change in the way that we approach the problem of drug abuse in the United States. The armchair forecast holds that the President’s legacy will be anchored by his handling of two wars abroad. But history may have equal regard for the means by which he handles the one he inherited at home.
Jelani Cobb has been a contributor to The New Yorker, writing frequently about race, politics, history, and culture.
By Jelani Cobb - The New Yorker/Aug. 2016
Illustration: Tom Bachtell
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