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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Monday, March 27, 2006

Prison & the War on Drugs: Just Say No

GUEST POST - by Hypatia (with contributions from Pete Guither)


Whenever the offence inspires less horror than the punishment, the rigor of penal law is obliged to give way to the common feelings of mankind.

- Edward Gibbon: The Decline and Fall of the Roman Empire


And so if people are violating the law by doing drugs, they ought to be accused and they ought to be convicted and they ought to be sent up…too many whites are getting away with trafficking in this stuff. The answer to this disparity is not to start letting people out of jail because we're not putting others in jail who are breaking the law. The answer is to go out and find the ones who are getting away with it, convict them and send them up the river, too.

- Rush Limbaugh, October 5, 1995

While the War on Terror (or "The Long War") preoccupies the nation, there's another war on an abstract noun ("The Other Long War") that continues to be fought against Americans: The War on Drugs. That war’s central weapon is prison, but the enemy is not the select substances on which the war is ostensibly declared. Rather, the guns are aimed at -- often enough, literally -- every citizen who acts as if the individual, as opposed to the state, should be deciding what to put into his or her body. The human costs of this “war” on citizens have been incalculable, primarily because of prison.

While the United States constitutes 5% of the world's population, this “land of the free” holds 25% of the world's prisoners – a third to a half are there for drug offenses . With all the talk of Guantanamo and extraordinary rendition, many overlook that we have a Gulag Prison System here at home, fueled by our drug laws.

Most Americans seldom think about or discuss penal policies in any systematic or focused way. That failure is itself a poltical/ethical crime, because prison and its uses is a consummately moral issue. Sentencing citizens to prison entails sending armed agents of the state after them, then placing them at the tender mercies of scalp-seeking prosecutors, and if convicted, locking them in cages and robbing them of their autonomy.

For us to collectively decide that the consensual, adult use or sale of intoxicants will be criminalized, means we are agreeing that hundreds of thousands of our fellow Americans will experience life-destroying calamity. These POWs will be ripped from their communities -- and frequently from their children -- for years, decades and for life, pursuant to mandatory sentencing schemes as Draconian as those in any dictatorship; how else to characterize putting, e.g., non-violent, vegetarian 23-year-olds in prison for life for selling LSD at Grateful Dead concerts? (It is some small measure of progress that in New York, they recently did away with the life sentences for drug offenders.)

Instead of being with their families, these citizens will be confined among a population teeming with violent predators, under harsh and terrifying conditions. Conditions in which, especially for the disabled, their health often cannot be maintained, as this shameful example shows, as does the case of Lillie Blevins, a non-violent woman who died while serving her life sentence for conspiracy to sell crack cocaine.

As bad as the wretched attention to health, if not worse, is the fact that in many prisons drug-offender “criminals” cannot be (or are not) meaningfully protected from rape and assault. And the drug war is directly feeding prison rapes. Tom Cahill, President of Stop Prisoner Rape, declares:

I credit the war on drugs with the tremendous increase in prisoner rape. Most prison rape victims are in for minor nonviolent offenses. The victim profile is a young adult heterosexual male, maybe small or with a slight frame, confined for the first time for a minor victimless crime such as possession of a little too much marijuana -- and too poor to buy his freedom. . . .

This epidemic of prison rape is just one more way the war on drugs is causing much more harm than the drugs themselves. These men and boys who are raped in prison will usually return to the community far more violent and antisocial than before they were raped. Some of them will perpetuate the vicious cycle by becoming rapists themselves in a misguided attempt to "regain their manhood" in the same manner in which they believe it was "lost."

(Women drug offenders are raped as well, sometimes with tragic consequences.)

If most of us don’t ponder these brutal facts of prison life that often as we go about our daily lives, well, the mind will concentrate on it mightily if oneself or a family member is facing a drug conviction. At that point, HBO series about life in the slammer cease to constitute gripping, salacious entertainment, and become instead foreknowledge of an imminent, waking nightmare. Indeed, the soul-sickening dread of prison has induced suicides, for example, a married couple from the heartland who endangered the republic by growing marijuana plants in their home:

Last fall . . . Dennis and Denise Schilling of Waukesha, WI,… hung themselves in a Madison motel room after being threatened with prison sentences and the seizure of their home for growing marijuana. They, along with their 20-year-old son Joshua, had been arrested after a snitch and a narc bought a total of $120 worth of marijuana at the house. On September 25, five days after federal officials filed asset forfeiture papers against their home -- why the feds were involved with a penny-ante grow-up bust is yet to be explained -- the Schillings ended their misery.

(What do the feds say to themselves when they go to bed at night, one wonders? “Well, too bad they took it so hard, but those Schillings, they were such a menace?”)

But of all the under-reported tragic aspects of the drug war and prison, none is more poignant (and a source of outrage) than the children who have lost their parents, increasingly their mothers. The pleas from young sons and daughters to have their mother or father back can be simply heartbreaking. As can be the more elegantly drafted anguish of an adult child of a drug war victim, on the theme of visiting her father in his new “home”:

Knowing I am close to the solid, gray, steel door my heart pounds rapidly inside my chest. It jumps like a rabbit that has been caged up, then finally set free. This door is the entrance to a walk that consists of unkindness, coldness, and unhappiness. ... "Time is up, all inmates to the rear and all visitors to the front please." The men in crisp white shirts and flat gray pants look out into the room of smiles and those smiles quickly fade. I hug my father goodbye and a salty tear rolls down my cheek as I see my papa shed a tear of his own. He holds me tight and his mustache tickles my cheek. A smile is created. Remaining strong, I convince my legs to carry me past the rows of tables with chairs facing one another, all in a straight line.

The men in the crisp white shirts holler for us to say our goodbyes; if only they had to say goodbye as we do. I head towards the giant door that will take me on the walk, only this time it will be in reverse. I have no fears, just hope. Someday my papa will emerge into freedom with me, until then I will take this walk as often as needed, and I will remain strong.

Certainly one might think that in a political climate in which “family values” is such a pervasive trope, the public should be receptive to the passionate voice of a young man like Tyree Callahan, when he speaks on behalf of himself and his younger siblings whose father has been imprisoned since Tyree was 16 years old: "Drug war families want their loved ones back..."

And indeed, they do. Yet in this sweet land of liberty, in the name of a war on inanimate substances:

  • Renea Darby, a non-violent drug “mule” has never spent a free day with her 15-year-old son.


  • Ruth Carter is serving a 15 year, 7 month sentence on a drug conspiracy charge. While in prison and spending precious time away from her, Carter’s daughter was killed by a drunk driver (who she says spent a mere 8 months in prison).


  • Douglas Lamar Gray , a father and Vietnam War vet is serving a life sentence for the heinous crime of marijuana trafficking: Says Gray:

I was fined $25,000 and sent to the overcrowded maximum security prison in Springfield (Alabama) with murderers and violent criminals. When I was sentenced, my wife attempted suicide with a pistol because of the emotional and financial stress. Fortunately, she survived, but then filed for a divorce. I was an independent roofing contractor and owned my own business with six men working for me; and sometimes as many as 12. But now I have nothing except my 12-year-old son who needs me badly.

  • Loren Pogue never bought or used illicit drugs, but he sold some land to undercover federal narcotics agents who mentioned using it for drug trafficking, and so this "real estate agent, missionary, former serviceman, Mason, Shriner, Lions Club Member, American Legion, VFW, and past Director of a Children's Home" has been sentenced to prison for 22 years. "Five of Loren's children live over 3,000 miles from the prison in which he is held. He hasn't seen four of his children, or his wife in over 11 years [as of 2001]." This elderly enemy of the people has 27 children, 15 of whom are adopted.

The examples cited above could be reproduced by the tens of thousands: American parents, grandparents and otherwise productive citizens whose lives and families are destroyed by prison, because we have declared a “war” on plants, pills and powders. As G. Patrick Callahan, co-founder of the November Coalition hauntingly puts it:

    Our marriages rarely last, and prisoners are usually shipped far from their homes. Contact with our children is minimal and often lost. Within about two years the lives of all concerned are irrevocably altered, generally for the worst: wives divorce and remarry; children grow up. The prisoner watches it all from the glass coffin of a prison cell. Behind the wire we are subjected to unremitting harassment, degradation, danger and discomfort, separated from virtually everything that makes life worthwhile. The years pass, one into the next, and many men simply go around the bend.

    Drug addiction we are told – and it certainly is all too often true – can destroy a person. So to save us from ourselves, the government ruins millions of individual lives and those of their family members, by locking non-violent drug offenders in hellholes. Given that no sober citizen imbued with American values could see the moral sense in that, one might be forgiven for wondering what all the drug warriors have been smokin’.

    UPDATE (by Glenn): This comment from Hypatia, responding to the view that drug criminals get what they deserve because the harm is "self-inflicted," is highly worth reading.

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