Tuesday, March 25, 2014

Capping or Branding?

Capping or Branding?


Once upon a time long ago (no, not the Stone Age, only 1978) I took a course in Chinese legal systems at Harvard Law School, and one item in particular has stuck with me ever since.  Professor Jerome Cohen told us that, in contrast to Anglo-American legal traditions that spoke of someone being branded a felon, the classical Chinese idiom referred instead to capping him as a felon.  The differences are profound.

The Chinese thinking was that people were not intrinsically bad or good, and that bad behavior was the result of improper learning and life.  While those whose acted badly had to be removed from society for the protection of others, their confinement should be used to re-educate them, teaching them to be proper and useful members of society, and it should last until, but only until, that goal was reached.  When they showed themselves to be rehabilitated[1], they would be released, shedding their prison garb (including the cap), and with the cap removed, rejoin society.  Professor Cohen’s analogy was a misbehaving school boy, forced to sit in the corner, but who, his lesson learned, would shed his dunce cap and rejoin the class.  Even after the Communist revolution of 1949, the Mao government, rather cynically, continued to pay lip service to this tradition by calling their brutal and repressive prisons “Reform Through Labor” camps. (Perhaps it was not totally cynical; after Mao’s death almost every one of the next generation of leaders had spent some time toiling in one of these camps.)

The English tradition, which later migrated to America, did not separate the act from the actor.  Compatible with the Christian view that Man was inherently sinful in nature, bad acts were seen as the visible sign of that internal evil and the purpose of the law was to remove the evil-doer to prevent his further harm to others.  At first, that removal was accomplished by outlawing him: all protection of the law would be denied to him.  Anyone providing food or shelter to the outlaw would themselves be punished, and any person could legally kill the outlaw.  His only hope of survival was to leave the kingdom.   As the legal system developed, outlawing was replaced by capital and corporal punishment, which included flogging and amputation as well as public abuse in pillories or stocks.  These punishments were usually accompanied with branding or mutilation so that, for the rest of his life, the felon’s appearance would warn others of his inherent criminal and sinful nature.  An A (arsonist), R (rapist), T (thief), or B (burglar) would be branded on his cheek or forehead; or an ear or nose would be cropped off as a more general warning.

By the time the American colonies were founded, England was moving away from corporal punishment to imprisonment, soon combined with banishment to penal colonies, although corporal punishment continued to a small extent in some American states until the twentieth century.  But the idea of criminal behavior as a symptom of an inherent character flaw continued.  American criminals continue to be symbolically branded even after they have completed prison sentences and been released from judicial supervision.  (Hester Primm’s big red A in Hawthorne’s The Scarlet Letter is a literary example of this kind of thinking.)  Even today in many states former convicts are barred from voting, denied student aid, cannot get public housing, and find themselves barred from many jobs.  Even if their faces are not scarred their pasts have branded them for life.

But America began to take faltering steps from branding to capping at an early date.  Dr. Benjamin Rush, one of the Founding Fathers and a leading medical practitioner of the time, advocated a new design for prisons that he called “penitentiaries”.  These would be places where a convict would have quiet and solitude to meditate on his sins, become penitent for them, and reconstruct himself as a new man.  By the middle of the nineteenth century most juveniles and some women were not flogged or imprisoned, but were sent to “reformatories” where they would be taught to lead proper lives.  Gradually some of these ideas were incorporated into prison doctrine: inmate education, pre-release programs, parole, half-way houses; but the programs remained primarily punitive and conviction remained a permanent stigma, not a lapse that could be remedied.  Convicts are still barred from voting, from jobs, from housing.

However, the last half-century, combining the War on Drugs and “tough on crime” has swelled the prison system to the breaking point.  Total federal and state inmates have almost reached the two-million mark, the highest rate in the world.  This American Gulag is peopled primarily by Black males and non-violent drug offenders.  Over half the federal prisoners are confined for simple commercial drug transactions, and these, like other prisoners are disproportionately men of color.  Almost one-third of all black men in America are under the supervision of the criminal justice system: on pre-trial detention or release, on probation or parole, or in jail or prison.  And the stigma of that incarceration remains for their entire lives – just like a brand.

This prison complex has become so blotted and inhumane that it can no longer be supported.  Ironically, one of the most hard-nosed of the tough-on-crime jurisdictions first realized this failure, and Texas has become a leader on penal reform – albeit under the force of federal court orders.  Community-based and education centered programs aimed at rehabilitation have emerged.  The federal government has also began backing away from some of the worst excesses of the War on Drugs and the New Jim Crow.  Federal Prosecutors have been ordered to avoid filing charges that require mandatory minimum sentences, and the Attorney General is starting to examine clemency for those previously sentenced under those laws.  He has also started to question state laws that disenfranchise felons who have completed their sentences.  Legalization of marijuana in Colorado has led to wide-spread calls to retroactively purge the criminal records of those who have previously been convicted for offenses now legal.

Change is in the air, and ending drug Prohibition is a prime driving force of that change.  The humanization of brutal, scarifying prisons is now under way.  Perhaps we are finally beating our branding irons into plowshares to till the fields of rehabilitation so that those who act badly can finally shed their felon’s caps and rejoin society.  


[1]  An interesting word.  Rewriting shows its roots: re-habilitation would be installing new habits.

Wednesday, March 12, 2014

To End the War on Drugs

To End the War on Drugs


My friend and colleague Dean Becker has been reporting on the War on Drugs for fifteen years, first on radio and more recently on television as well.  If you have attended a conference on Drug War policy in the last several years, you have probably seen him with his microphone and camera.  This work has resulted in an archive of over 40,000 pages[1].  Dean has taken excerpts from that archive and made them the basis of his new book, To End the War on Drugs: A Guide for Politicians the Press and Public[2].  Over 115 interviews are quoted.

The book is a great read for almost everyone.  Those new to the issues of drug law and reform will find most of the issues laid out in ways easy to understand.  Old timers in these issues will become acquainted with the names they have been hearing for years and also learn more about them individually and about what has motivated them.  It is structured with short excerpts (from a few paragraphs to a few pages) that, as well as contributing to the overall flow of Dean’s argument, stand alone so that the book will be welcoming to browsers to pick their way through it.  The sets of excerpts are tied together with essays by Dean that provide context and organization and tell a lot of Dean’s personal journey as well.

The scope of these interviews is breath-taking.  They range from people in law enforcement – police (mainly retired and members of LEAP as is Dean himself) to judges to a prison warden – through medical researchers and practitioners to medical marijuana patients and their families to victims of the drug war to those who have led the fight against it.  While this breadth leads to some repetition, even that repetition paints more details into a vast and vibrant landscape.

My major regret with the book is that Dean didn’t start early enough.  I would have liked to read the thoughts of the first cucaracha to bring his mota across the Rio Grande or to hear Dr. O’Shaughnessy talk about his experiences with cannabis in British India or learn what George Washington hoped for the commercial prospects of his hemp crop.  But maybe we will be lucky enough to hear his interview with the president just after he signs the act repealing drug prohibition.

This is a good book that will educate, hearten, and inspire you as it welcomes you into the community of those trying to make everyone’s life better.  Pick it up and read it.  You’ll be glad you did.

If you want more of Dean, in addition to his book, you can go to:

·         “Century of Lies” radio broadcasts, KPFT-FM

·         www.DrugTruth.net

·         Endthedrugwar.us

·         Archives, The James A. Baker III Institute, Rice University www.BakerInstitute.org

[1]  Now at the James A. Baker III Institute of Rice University.
[2] Available at Amazon.com in both paperback and Kindle formats.

Monday, March 3, 2014

Get Shorty

Get Shorty


The Mexican Marines arrested “El Chapo” (Shorty) Guzman, reputed head of the Sinaloa drug cartel, and the DEA has been crowing like a rooster greeting an Alaskan spring dawn after a six-month sunless winter.  If the press is to be believed, Guzman certainly is a cold, violent, deadly career criminal who has earned a life-long tenancy in a federal Super-Max prison.  But there is much less about his capture than meets the eye.  It does not merit the gleeful celebrations of the Drug War bureaucrats.

Getting Shorty (I don’t call it an arrest because this military raid has little, if anything, to do with proper police procedure) fails to give cause for celebration for two reasons.  The minor one is its cost.  This kind of multi-national military and police operation extending over several days or weeks and involving two cities has to have cost several million dollars to plan and execute.  The other large cost, potentially much more serious, was only a probability that happily did not occur.  An large-scale armed raid on a man known to surround himself with professional killers was likely to end in a storm of gunfire.  To stage one in the middle of a large city whose streets teem with people around the clock was to invite injury or death to multitudes of innocent bystanders.  Do we really want scenes like those from the streets of Damascus staged in our cities?  By sheer luck, this incipient battle ended bloodlessly – this time.

The major shortcoming of the Get Shorty caper is that it did nothing to further the stated goals of the War on Drugs.  One way or another, the Cartels will continue their businesses.  One of El Chapo’s underlings will step in, or Sinaloa will split into separate parts each carrying on the trade.  The worst outcome would be for warfare to break out again among all the rival groups sensing a weakness in Guzman’s group.  That kind of warfare would increase the bloodshed in Mexico and possibly in Chicago.  And since wars cost money, the rivals would feel pressure to increase the volume of their sales.  The ascendancy of the Cali Cartel to control over Colombia’s cocaine trade after the killing of Pablo Escobar is a good precedent.  The Mexican cartels have much deeper and stronger roots than did the Colombian ones.  Some of the Mexican gangs have been in continuous operation since the days they were smuggling alcohol across the border in the 1920s.

While the marines and DEA were staging their circus act in Mazatl├ín, Colorado and Washington were quietly attacking the Cartels in the way that does the most damage:  by legalizing the production and sale of marijuana they are working to cut off the flow of money that is both the reason for the Cartels’ existence and the fuel that allows them to function.  Legitimizing the product removes the high contraband premium adds to the price of marijuana, probably dropping the price by at least ninety percent, and it also prevents the police agencies from enforcing and protecting the Cartel monopoly.  Guzman’s group can in no way compete with honest farmers.

Classical mythology tells of the Hydra, a hideous flesh-eating monster.  Hydra was thought to be invincible because when its head was cut off, it immediately grew two more.  Heracles solved the problem by ignoring the threatening heads and going straight for its heart, killing the Hydra with a single sword thrust.  By going after Guzman, the DEA is merely hacking at the Hydra’s head: legalization, by stemming the life-blood flow of money, is thrusting into the monster’s heart.  The time has come to quit flailing around blindly and to start cutting surgically by removing the Prohibition heart of the monster.