President’s Mixed Record on National Drug Policy

September 21, 2011
Guest Post

By Matt Kaiser, an attorney at The Kaiser Law Firm PLLC. Mr. Kaiser blogs at Federal Criminal Appeals Blog.

Reason magazine recently featured an article on President Barack Obama and the drug war. The title, albeit in rather hyperbolic fashion, says it all – “Bummer.”

Many of us thought that when Obama came into office the war on drugs would be different.  Reason’s Jacob Sullum, in his article, “Bummer,” however, takes Obama to task for not living up to the expectations of those who want our national drug policy reformed. I think, though, that Sullum goes a little too far.

The reasons for desperately needing reform are many and existed well before Obama came to office. Mandatory minimums are too harsh and hurt too many low-level participants in the drug trade. Our incarceration rates lead the world – perhaps the most verifiable form of American Exceptionalism we have. We are spending ourselves into oblivion both domestically and abroad. And, apparently, 65 percent of us think that the war on drugs is a failure.

Before he became president, Obama knew our drug policy needed to change. As a candidate for the United States Senate, he described our war on drugs as an “utter failure.” As an Illinois state senator he said that “we can’t continue to incarcerate ourselves out of the drug crisis.” As he was gearing up to run for President, he advocated a “public health” approach to our nation’s problem with narcotics.

Sullum paints Obama too negatively – viewed properly, I think the president’s record has been a mixed bag.

To give the president credit, Obama’s Department of Justice pushed through a major change in crack cocaine sentencing, the Fair Sentencing Act. The FSA lessened much of the horribly unfair effects of the disparity between how dealing crack cocaine is punished relative to powder cocaine. As Professor Douglas Berman has written, Obama’s Department of Justice has been slow to apply this new law to everyone who could benefit from it. The Department of Justice did reverse course though, and the administration’s position now calls for a broader application of the FSA.

What’s more, the Department of Justice, under Obama, has also reformed its internal policies on what federal prosecutors are allowed to do when bringing cases and offering plea agreements. The effect is that prosecutors are now able to be more flexible. Rather than charging the most serious crime they can prove – and insisting that defendants plead guilty to it if they want to avoid trial – the “Holder Memo” directs federal prosecutors to make an individualized assessment about each case and each person’s culpability in that case. It’s an open question whether that’s what line prosecutors are doing, but, regardless, more flexibility is generally fairer. For people accused of drug crimes, and any other kind of federal crime, the “Holder Memo” is a step in the right direction.

On the other hand, President Obama’s use of the pardon power has been a significant disappointment. By the time of his second Thanksgiving in office, the President had pardoned four turkeys and not a single human. He’s only granted 17 pardons so far in his presidency, nine in December 2010 and eight in May of this year. As The Washington Post aptly put it, President Obama uses the pardon power “timidly.”

And, as Reason’s Sullum details, the federal government has been aggressive with making life difficult for medical marijuana promoters under Obama. The extent to which this is the best barometer of the status of the war on drugs may turn on whether you think the drug war is being fought in Oakland or Berkeley, though.

President Obama has earned some of the criticism detailed by Sullum, but not all of it. The president has made meaningful changes at the margins of the drug war, but he hasn’t ended it entirely.

At this point in our war on drugs, though, there is only so much a president can do.

If the drug war has been an “utter failure” to curb the use and distribution of drugs, it has been a tremendously effective way to get Congress to spend money on federal and state law enforcement. At this point, the sad truth is that there are so many people who earn their living from our drug war, and so many local police forces that count on federal funding from it, that there is no clear way to go back. Perhaps the most accurate way to think about the war on drugs is as a jobs program that costs both taxpayer money and human freedom – like a morally bankrupt transportation bill. No president can walk away from that kind of stimulus, especially in a recession.

Some larger reform effort may be able to succeed, but it would have to be truly comprehensive. Senator Webb has been pushing for a commission to find a way to chart such a path. But in the absence of a comprehensive approach to changing the way we think about drug policy, law enforcement will continue to drain money to fight an unwinnable war against our own citizens.

Perhaps the best lesson we can draw from President Obama’s record with the war on drugs is that, regardless of the intent of the candidate, there’s only so much change we can reasonably believe in. And that, rather than what President Obama has done in office, is a bummer.