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Bad Government and the Challenge of Ending the War on Drugs

David Callahan

Progressives hoping to better understand why conservatives so dislike government can enlighten themselves by fixing their attention on America's war on drugs -- and the formidable challenge of actually stopping that runaway train.  

It's one thing for top U.S. officials like Eric Holder to call for winding down the war on drugs. It will be quite another to achieve that goal with policy reforms at both the federal and state level. The reasons this will be so hard go beyond the well-known tendancies of our government to focus its punitive resources on society's weakest and most marginalized members, and especially young men of color, a phenomenon I wrote about yesterday

The challenge also lies in the inflexibility of government and the political system. The right, of course, is obsessed with these rigidities to the point of irrationality. But the left needs to grapple more seriously with such problems as well, and the war on drugs is a good case study. 

A major conservative beef with government is that legislators often rush through ill-considered laws in response to some public outcry, and then these laws remain on the books long after popular hysteria has subsided -- in effect, creating government on auto-pilot. 

The war on drugs perfectly illustrate this phenomenon. Most of the tough federal and state drug laws were passed over two decades ago, at the height of a crack epidemic that was bringing carnage to U.S. cities. Some laws, like the infamous Rockefeller drug laws in New York, date back even further, to an earlier wave of crime and drug hysteria in the 1970s.

Twenty-five years ago, Americans were acutely worried about drugs and crime -- with polling on these issues showing a peak of public concern during the late 1980s and early 1990s. In fact, the percentage of Americans saying that drug abuse was the "single biggest problem" facing the country hit a historic high in 1989

To be sure, there were plenty of opportunistic politicians who pumped up this hysteria, and racially coded appeals to law-and-order were a central part of the right's political strategy during this era. (These appeals are still with us, of course, particularly judging by the immigration debate.) 

But the crack epidemic was also a very real social catastrophe. A stunning 2,245 murders occurred in New York City in 1990, and city after city was experiencing a level of mayhem never seen before in U.S. urban centers, save perhaps during the 1920s. You could barely turn on the local news without reading about another drive-by shooting. 

Amid this panic, politicans did what politicians do: They passed a bunch of laws to address the problem. These laws, particularly on mandatory minimum sentences, were a textbook case of elected leaders acting rashly and stupidly.

Among the earliest critics of the laws were judges and prosecutors who lost flexibility in how they administered justice. Prison wardens also hated mandatory sentences because they took away the all-important carrot of reduced time which is crucial for managing inmates.

Sound familiar? It sure does: elected leaders routinely enact laws that so are poorly thought out and counterproductive that they dumbfound professional civil servants and others who actually work first-hand on an issue.

The right loves to excoriate "bureaucrats," but more typically it's lawmakers who create screwed up government. Or, in ballot initative states, it's often the public that directly enacts stupid laws. 

Progressives reflexively pooh-pooh the critics of regulation as self-interested. But sometimes the biggest complaint of these critics is that government rules are simply unworkable or impractical. 

In the case of the drug laws (and other tough statutes on sentencing and repeat offenders), one of the biggest problems -- at the state and local level -- is that these laws created a disconnect between the administration of justice and the resources going to this task. 

Law enforcement is mainly handled at the county and local level in most places. And cracking down on crime can make sheriffs and prosecutors look good. But it's state taxpayers who pick up most of the tab. The locals score political points without also having to explain higher taxes to voters. 

On the other hand, counties have faced rising costs for jails and some local leaders have tried to buck the drugs laws -- only to find that their hands were tied by state and federal statutes that require Draconian penalties. 

And therein lies another problem with government, particularly the federalist form we have here in the U.S.: the left hand and right hand may dramatically affect each other, but are not always controlled by one brain. 

All this dysfunctionality has played out against the backdrop of plunging public concerns about drugs over the past quarter century. In 1989, around the time most of the new drug laws were passed, 27 percent of Americans said drug abuses was the single bigget problem facing the country. Two years later, it was 11 percent. And two years after that, it was 6 percent. Public concern spiked upward in the late 1990s, before heading even more steeply downward. In 2004, just 1 percent of Americans named drug abuse as the nation's top problem. More recently, polls have shown many Americans favoring decriminalization of drugs and last year's election saw tangible steps in that direction. 

Of course, though, state laws don't change just because public opinion does. As any politician will tell you, repealing laws -- even dumb, outdated laws -- can be difficult because of the political risks involved, especially when it comes to crime. If you vote to go easier on crack dealers and then a crack dealer kills a little girl and her mom in a drive-by, you could be politically cooked. Your opponent's ad team will see to that in the next election. 

And so even as state legislators of both parties have hungrily eyed funds going to prisons for use in other, more popular areas, actual repeal of harsh laws has been extremely difficult. Not surprisingly, it's Republicans in southern states that have actually taken the lead here, as Eric Holder noted yesterday -- a Nixon-goes-to-China kind of shift. 

Oh, and let's not forget about the prison-industrial-complex. Another longstanding critique of government -- this one shared by both left and right -- is that government spending creates powerful constituencies for more spending. The right likes to focus on public sector unions, while the left likes to talk about private contractors. Both culprits are at work in this case. 

In many states, reducing incaceration and closing prisons is very unpopular with a) private prison contractors and/or interests that benefit from cheap prison labor; b) rural legislators whose districts include prisons that not only bring jobs by also more representation in legislators thanks to prison-based gerrymandering; and c) correctional officers unions, which have used both political contributions and public relations campaigns to fight the reform of drug laws. 

That may not sound like the most powerful coalition for keeping outdated and insanely expensive and destructive laws in place. But, together with the political fears I noted, it's done the trick. 

The moral of this story is not that government is bad or can't be a positive agent of change. Rather, it's that the public sector is easily hijacked by bad ideas that then spin out over years or decades, with extremely destructive results. And, again, it's often finger-in-the-wind politicians who are more to blame than the professional civil servants who get clobbered.

One antidote to this auto-pilot effect is to keep pushing for a more responsive democracy. And here, again, the drugs laws are a good example. If more low-income people voted, and really had an equal say in our political system, and prison contractors and corrections unions couldn't spend so much on lobbying and donations, than some of these laws might have been ditched long ago. 

Popular will helped get us these bad drugs laws. If our democracy worked properly, it could help get rid of them.