Mandatory Drug Sentences and Moral Change

This week, Eric Holder, the Attorney General, announced, essentially by executive decree, that the Obama Administration would no longer enforce the standing rules on mandatory-minimum sentencing for drug offenders—at least, not for otherwise unoffending individuals. This sounded big on its approach, then left a smaller wake on its departure. There seems to be pretty general pleasure at a decision that does something, however small, about the mad scandal of American incarceration, the almost unbelievable extent and scale of which I wrote about last year. No one with a working heart can fail to miss the injustice in, for example, the case of the college-bound kid who was carted off to prison for ten years, against all the wisdom of the presiding judge, crying for his mother, for simply having been found in a car with drugs inside. And such stories were commonplace. They had to be. As I wrote last year, there are more African-American men now incarcerated in America than were held in slavery in 1861, and more Americans under “judicial control” of one kind or another than Stalin held in his Gulag.

But even if this is the first decisive small stone pitched against a national shame, its specific effect on the imprisoned will still be minimal. Most prosecutions are not federal, no one now in prison will be released, and the careful hedge of politic exceptions—no mercy for drug gangs, dealers, etc.—is bound to create many complications. As so often, though, the critics, I suspect, both underestimate the difficulty of big change and the geometric, multiplier effect of small ones. The mandatory-minimum movement was a way, typical of the fear-and-revenge cycle of the eighties, to prevent those damned liberal judges from letting drug offenders loose. It was a way to short-circuit permissiveness—not to mention decency, common sense, and simple mercy—by insisting that an offense that is no worse, really, than being caught with a Martini in a speakeasy should be met with enough prison time to ruin a life. It expressed an ideology. By expressing its opposite, the new rules discredit the old one. As with gay marriage, a signal from on high can often have as much value as a successful bit of comprehensive legislation. The clarity of the sign is plain even if the power of the signal is weak: the thirty years of irrational vengefulness expressed in those mandatory minimums that filled our prisons to no real social purpose is now robbed of its appearance of natural legitimacy, of social consensus. What should follow, surely, is its end.

The new readiness of the President, through his subordinates, to act unilaterally—to assert power from the odd fact of his having twice been decisively elected to lead the country—though it has outraged a few Republicans, is itself a positive sign. Obama has often seemed to his admirers ineffectual in the exercise of authority (even if, to his madder detractors, he seems all too effective, purportedly turning the country into a sort of postindustrial Cuba). Yet one only need to have read either of his books to understand that his core psychic impulse, his governing desire, is to bring deeply unlike kinds into harmony. That he can’t, and hasn’t, doesn’t lessen his need to be seento do so. (If we abandoned our core psychic impulses when they were repeatedly frustrated by reality we would have no lives at all, and no literature worth reading.) In any case, his willingness to simply issue an order, however limited in scope, is a sign that he may be coming to the end of his commendable patience. Commendable because a desire to believe that the other guy is inherently open to reason, no matter how unreasonable he has been, is a kind of liberal politician’s version of Pascal’s gamble: believing it to be true might in the very long run have terrific results, while not believing it leaves you with nothing but despair.

And so, with all its limits, the new rule is welcome. Social change and reform rarely proceed on a vast scale after an overwhelming legislative program. They happen through a more limited-seeming but ultimately geometric process. The prisons might not be emptied, but some doors may open. An underground spring of sentiment forces its way upward, priming a few isolated voices to speak up; the sound of those voices at last makes its way to, and then through, respectable opinion; respectable opinion then meets the practical necessities of power; that power creates a disappointingly limited remedial policy—yet its existence means that the bad thing quickly begins to look far less formidable.

In this case, the practical necessities of power involve the sheer financial cost of mass incarceration, which is beginning to be felt even by the most craven of judicial jailors. One cannot run a state that is both cheap and carceral.

With gay marriage, an outlier position became a respectable one, then the practical difficulties of enforcing a ban on gay marriage on a national scale became apparent, respectable opinion conceded that marriage equality was inevitable, and, at last, Justice Kennedy made it seem, to those who share his conservative philosophy, like a respectable and noble cause. That’s how change happens, and it seems to be about to happen now. By the time they came to liberate the Bastille, there were almost no prisoners left inside.