Obama is Finally Catching Up With Libertarians on Criminal Justice Reform

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Thu, Jul 23 - 1:00 pm EST | 3 years ago by
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Corridors of Power - Obama on Criminal Justice Reform

Barack Obama made history this summer when he became the first sitting President to tour a federal prison and meet with inmates. In remarks delivered at the El Reno Federal Correctional Institution in Oklahoma, the President doubled down on a growing bipartisan consensus surrounding criminal justice reform. Speaking specifically about sitting down with non-violent offenders, Obama said:

Visiting with these six individuals — when they describe their youth and their childhood, these are young people who made mistakes that aren’t that different than the mistakes I made and the mistakes that a lot of you guys made. The difference is they did not have the kinds of support structures, the second chances, the resources that would allow them to survive those mistakes.

And I think we have a tendency sometimes to almost take for granted or think it’s normal that so many young people end up in our criminal justice system. It’s not normal. It’s not what happens in other countries.

What is normal is teenagers doing stupid things. What is normal is young people making mistakes. And we’ve got to be able to distinguish between dangerous individuals who need to be incapacitated and incarcerated versus young people who, in an environment in which they are adapting but if given different opportunities, a different vision of life, could be thriving the way we are.

That’s what strikes me — there but for the grace of God. And that I think is something that we all have to think about.

This echoed the President’s recent remarks at the 106th annual NAACP convention in Philadelphia, where he took the opportunity to discuss the nation’s criminal justice system with an emphasis on how it impacts communities of color. As the President said:

The United States is home to 5 percent of the world’s population, but 25 percent of the world’s prisoners. Our incarceration rate is four times higher than China’s. We keep more people behind bars than the top 35 European countries combined. And it hasn’t always been the case — this huge explosion in incarceration rates. In 1980, there were 500,000 people behind bars in America. Today there are 2.2 million. It has quadrupled since 1980. Our prison population has doubled in the last two decades alone.”

In conjunction with his prison trip and NAACP appearance, the President pardoned forty-six non-violent drug offenders, totaling his sentencing commutations to eighty-nine over two terms.

This reflects long overdue progress on an issue that libertarians have consistently been on the right side of. While the vast majority of Republicans and Democrats spent half-a-century promising victory in the “War on Drugs,” libertarians warned of the economic and moral consequences endemic to jailing people for non-violent behavior often linked to a lack of opportunity and addiction.

While it’s helpful to have a figurehead as important as the President speaking out on an issue, it’s unfortunate that Obama didn’t take more direct action on this matter throughout his now waning presidency. As Jacob Sullum, who covers drug policy for Forbes and Reason wrote in 2011, Obama’s first term was disappointing for reform advocates, despite his previous rhetoric.

Said Sullum:

So far this much-ballyhooed shift has not been perceptible in Obama’s drug control budgets. Even if it were, moving money from law enforcement to ‘treatment and prevention’ would hardly amount to ending the war on drugs.

Despite (Obama’s Director of the Office of National Drug Control Policy’s) insistence that you can end the war on drugs if you stop calling it that gives you a sense of the chasm between rhetoric and reality in Obama’s drug policies, which by and large have been remarkably similar to his predecessor’s. With the major exception of crack sentences, which were substantially reduced by a law the administration supported, Obama has not delivered what reformers hoped he would.

His most conspicuous failure has been his policy on medical marijuana, which is in some ways even more aggressively intolerant than George W. Bush’s, featuring more-frequent raids by the Drug Enforcement Administration (DEA), ruinous IRS audits, and threats of prosecution against not only dispensaries but anyone who deals with them.”

Criminal justice reform optimists responded to Sullum’s criticism by suggesting that in his second term, Obama would be more bold, as he wouldn’t have to worry about reelection. After all, he had supported strong drug reform bills as a State Senator in Illinois, and called the War on Drugs an “utter failure” in 2004.

Despite the recent past, it does appear that at this point the President is making good on some of his initial promises. The DEA, for example, has stopped raiding marijuana dispensaries, and Obama’s administration has given states the leeway to legalize the drug. It’s hard to say however if presently, the President is acting on true convictions, or simply feels more comfortable given the growing bipartisan consensus on criminal justice reform. Whatever his reasons, the results are encouraging, and libertarians in particular are happy to finally see beltway politicos catching up to us.

As for libertarian opinions on non-violent drug use, perspectives range from the most radical position of full legalization, to the somewhat conservative but reform-minded federalist approach preferred by Senator Rand Paul – to whom President Obama gave a thoughtful shoutout in his NAACP remarks:

As Republican Senator and presidential candidate Rand Paul has said – and to his credit, he’s been consistent on this issue – imprisoning large numbers of nonviolent drug offenders for long periods of time, ‘costs the taxpayers money, without making them any safer.’”

This goes to show that as a libertarian Republican, Rand Paul is making substantive, bipartisan headway with legislation such as the REDEEM Act, Justice Safety Valve Act, and the Civil Rights Voting Restoration Act, among others. Paul is very conservative as far as libertarians go on the issue of drug reform, but he appeals to a broad swathe of the electorate by showing how we can reduce taxpayer burdens and give non-violent offenders a chance to rejoin society without being forced into government dependency.

Too often, individuals who never actively aggressed upon others are thrown in prison for behavior that can be chalked up to addiction, or following a black market path that leads to prosperity in otherwise blighted communities. Upon release, often for prison terms that defy common sense due to mandatory minimum sentencing, they are stripped of their right to vote and frequently deemed unfit for a steady career as a result of criminal history inquiries during the job application process.

These factors contribute significantly to high recidivism rates, yet drugs remain on the streets, cartels and gangs are empowered, and prisons grow ever-more crowded. Hopefully, the nation can continue to learn from over half-a-century of failed policies, as well-intentioned as they may have been at their inception.

President Bill Clinton, who doubled down on the Nixon-Reagan-Bush drug policies of prior years, recently apologized for the militarization of the drug war under his administration. And Clinton isn’t the only politician rethinking the rhetorically pleasing but largely ineffective “tough on crime” policies of the past.

Rick Perry, the former Governor of notoriously “law and order” focused Texas, said:

During my leadership as governor, Texas shut down three prisons, and we saved taxpayers $2 billion. When I left office, Texas had the lowest crime rate in our state since 1968. My administration started treatment programs and drug courts for people who wouldn’t be served well by sitting behind bars. We made sure our parole and probation programs were strong. Most of all, we evaluated prisons based on whether they got results. Did an ex-offender get locked up again? Did he get a job? Is he paying restitution to his victims? In Texas, we believe in results.”

If individuals over such a broad span of the political spectrum can come together and acknowledge that criminal justice reform is imminent, there’s hope that future generations will not suffer under the unjust policies of a bygone era. President Obama’s pardons have largely been based on the contention that the sentences these recipients of clemency are serving no longer reflect current law, therefore they’re invalid.

If Obama ends his second term on a criminal justice reform high note, it will give libertarians something to reflect positively on about his time in office – despite his abject failures on issues such as government surveillance and economic freedom. As Supreme Court Justice Anthony Kennedy wrote of the recent case that legalized marriage equality across the nation, “The nature of injustice is that we may not always see it in our own times.” We must fight to have the same logic substantively applied to drug policy reform.

Photo by Mark Makela/Getty Images

Corie Whalen Stephens is a libertarian-conservative activist and writer based in Houston, Texas

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