At some point, everyone ought to throw his or her political theory – whatever it is – up against the wall of reality to see if it sticks. I ran smack into that wall when the state shackled Mark, one of my best friends, and hauled him off to a dank, violent, maximum-security prison for a 17-year stay. His crime: possession of a spoonful of cocaine, some of which they said he intended to distribute. The judge had recommended he be sent to a prison that focuses largely on drug treatment, but it is hopelessly overcrowded. So there Mark sits in Hagerstown, Md., his letters reflecting a mind slowly losing its tether as violence and mayhem swirl around him.
I’ve always believed that we live in a fundamentally liberal society that can trace its way back to enlightenment thinkers like Jefferson, Madison, Locke, Mill and Rousseau. Sure, the past 24 years of the Reagan, Bush and even Clinton regimes haven’t been kind, but one bedrock principle still seemed intact: If not equality and fraternity, we’ll always have liberty. And so, as guards frogmarched my friend out of the courtroom shackled hands to feet, I wondered how confining that man for 17 years jives with my understanding of our nation’s values. Is imprisoning hundreds of thousands of people an acceptable policy result of a liberal, pluralistic democratic society? Or, is the drug war proving libertarians correct about the potential for abuse of government power?
The principal disagreement between libertarians and liberals regarding the expansion and protection of liberty goes something like this. Libertarians argue that the state, broadly understood to include both state and federal governments, is the greatest threat to individual freedom. Therefore the best way to guard liberty is to restrict the power of the state to the greatest extent possible, leaving it only to protect two “freedom froms” – the freedom from force and the freedom from fraud. The rest, they say, will work itself out.
Liberals counterclaim that the libertarian critique ignores the reality of other organized forms of power – such as corporations, private militias and intractably racist state governments – that can infringe on an individual’s freedom. They argue that freedom can only exist fully against the backdrop of some measure of equality and opportunity. Liberalism therefore calls for the expansion of state power based on the belief that such power should be used to create space for and protect individual rights and freedoms. In other words, liberals expect their elected government to provide freedom from oppressive nongovernmental forces and to help guarantee equal access to real opportunity.
But what if the government itself becomes the oppressor?
Eric Sterling, a Reagan-era-drug-warrior-turned-reformer who now heads up the Criminal Justice Policy Foundation, refers to what he calls the “drug war exception to the Bill of Rights.” Unlawful searches and seizures are not permitted – unless cops are searching for drugs, which are not legal property and therefore not protected. No self-incrimination – unless it’s a drug test. No cruel and unusual punishment – unless you were caught with cocaine. And so our two greatest bulwarks against tyranny, checks and balances and the Bill of Rights, are out the drug war window.
Today, one of every eight black men between the ages of 25 and 29 – the cohort Mark falls into – is behind bars. The U.S. incarceration rate not only ranks number one in the world, but also some eight times higher than Western European nations.
In “An Analytical Assessment of U.S. Drug Policy,” Peter Reuter, a conservative critic of the drug war and the director of the University of Maryland’s Center on the Economics of Crime and Justice Policy, and David Boyum, a health policy consultant, have come to some radical conclusions.
“As currently implemented, American drug policies are unconvincing,” Reuter and Boyum write. “They are intrusive … divisive … and expensive, with an approximate $35 billion annual expenditure on drug control … yet they leave the nation with a massive drug problem, greater than that of any other Western nation.” Reuter and Boyum call for, among other proposals, eliminating criminal penalties associated with marijuana and drastically increasing emphasis on drug treatment instead of incarceration.
In an April essay in the Washington Monthly, William Galston, a leading philosopher of liberalism, challenged liberal thinkers to question how their conception of freedom might shape a liberal political view:
Edmund Burke famously observed that Americans “sniff the approach of tyranny in every tainted breeze.” Even today, the extraordinary value Americans place on individual liberty is what most distinguishes our culture, and the political party seen by voters as the most willing to defend and expand liberty is the one that usually wins elections. Conservatives have learned this lesson; too many liberals have forgotten it. And as long as liberals fool themselves into believing that appeals to income distribution tables can take the place of policies that promote freedom, they will lose.
The questions before us are, what is the meaning of freedom in the 21st century, and what are the means needed to make it effective in our lives? Those of us who oppose the conservative answer cannot succeed by changing the question. We can only succeed by giving a better answer.
At some point, that better answer must take into account the scope of the state’s authority to incarcerate its citizens. Imprisonment is the antithesis of individual freedom. With more than 2 million citizens locked up in American prisons and jails, the time for a better answer is long past due.
I asked Galston: Is this state of affairs an acceptable result of a pluralistic liberal system, or is there something fundamentally illiberal about American politics today?
“You could reasonably take the position that the current policies are badly flawed in principle and also leading to very negative consequences,” he says. “Certainly it’s the case that the more seriously you take liberty as the bedrock of a liberal society the more seriously you have to take the deprivation of liberty.”
He blamed the lack of drug war dissension on “the political traumas inflicted on liberal Democrats in the ’70s and ’80s in the debate over drugs and crime, when the party and liberals were tarred with a brush – soft on crime, soft on drugs, maybe even encouraging a drug culture.” But he suggests that these wounds may be healing, and that the public may be ready for a serious debate on drug and incarceration policy.
And none too soon. Silence from liberals in this debate is, in effect, an endorsement for the status quo. It is time to stand up in defense of liberty – not just equality and fraternity.