Procrustean Bedfellows?

Rick Perry and Eric Holder on the same page?

Last week the Attorney General announced that he was changing Justice Department policy in an effort to reduce the number of people sent to overcrowded federal prisons. These policy changes include charging alleged offenders in a manner so as not to invoke mandatory minimum sentence provision, primarily in drug cases, and release of elderly prisoners deemed not to be a threat any longer.

Holder is actually behind the curve. Perry, about as right as the Attorney General is left, ten years ago urged and obtained passage of a Texas statute that sentences persons convicted of possession of less than a gram of illegal drugs to probation, early release, and alternatives to prison for non-violent offenders.

This should not be much of a surprise. Texas conservatives have always had a libertarian streak, and Perry is no exception. Advocates of the failed “war on drugs” have cut across ideological lines for some time. One of the most important goals for the early 20th Century Progressive Movement, which the American left of today regards as it ideological ancestor, was alcohol and recreational drug prohibition. Those earlier lefties succeeded, though the prohibition of alcoholic beverages was short-lived.

Some conservatives have howled about Holder’s proposals. To a large extent, that is a knee-jerk reaction. Many of the current AG’s polices are – justifiably – repugnant to the right, and the ad hominem reaction is understandable. Nevertheless, conservatives should stop and think twice about Holder’s initiatives.

The cross-ideological fear of drug-related crime is what enabled Congress, and most of the states, to pass draconian laws providing penalties for illegal drug dealing and even simple possession of certain controlled substances. There is little evidence that those penalties have stanched the drug trade. On the contrary, they have encouraged it by making it more lucrative for the most vicious of criminals who are smart enough to stay out of law enforcement harm’s way by enlisting and controlling low level “retailers” who tend to be the ones caught and sent to prison. Risk always makes an endeavor more lucrative, and the kind of person who will violate harsh laws in order to profit is inevitably psychopathic.

It’s not just the drug war. Since the 1960s, the fear of crime has encouraged politicians at every level, but especially those in Congress, to enact harsh criminal statutes to avoid being accused of being “soft on crime.” To a large extent this is an effect of the McLuhanesque global village media has created. The result is a federal criminal code of several thousand offenses, many of which the average citizen has no knowledge. It has also resulted in the criminalization of regulatory violations so obscure that few would even know they might violate the law by engaging in seemingly innocent activity.

This area is where Holder – and state and federal lawmakers – also need to push for reforms. Rather than put non-violent tax evaders, white-collar fraudsters, and polluters in prison, give them probation with a threat of prison conditioned on paying their taxes, making restitution, and cleaning up the mess made – at a hefty rate of interest and costs. And get rid of criminal, as well as civil, statutes that serve to punish or regulate purely state or local activities.

Drug offenders, as well as other non-violent criminals, should only go to prison for multiple successive offenses, and then only for long enough to get their attention. I personally would favor de-criminalizing all drug possession offenses, while maintaining harsh sentences for purveyors to minors. After all, it costs over $50,000 per year (as set forth in a U.S. Court pre-sentence report) to house, feed and otherwise care for a federal prison inmate. That money could be better spent elsewhere

Some intelligent reporting on this issue can be found in the current The Economist, pp.23-24 or this link.

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