The year began with a line that was as much a lamentation as it was an astute observation. "The scale and brutality of our prisons are the moral scandal of American life," Adam Gopnik wrote in a trenchant essay in the Jan. 30 issue of the New Yorker. "How did we get here? How is it that our civilization, which rejects hanging and flogging and disemboweling, came to believe that caging vast numbers of people for decades is an acceptably humane condition?"
The year ends with filmmaker Eugene Jarecki touring the country -- visiting prisons, prosecutors' conferences, schools -- showing off his heartbreaking documentary, The House I Live In, an acclaimed collection of interlocking stories about the mournful human impact of America's failed war on drugs. Did you know there is a man serving a life sentence in Oklahoma for "trafficking" three ounces of methamphetamine? Did you know that the rise of privately-owned prisons means that there is now a direct financial incentive to incarcerate people?
The 11 months in between these two statements were extraordinarily fruitful ones in this area of law and justice. And almost all of the change seemed to reflect a growing sense of unease, or even disgust, on the part of America's criminal justice community -- lawyers, judges, politicians, prison officials, etc. -- a sense that the status quo is unsustainable, that America can no longer afford, on either financial or moral terms, to keep millions of its citizens locked up. It's too early to label 2012 a turning point in our war against the war on drugs. But it's not to early to see a definitive trend in that direction.
In June, for example, in the case Dorsey v. United States, the U.S. Supreme Court endorsed new federal sentencing rules that finally reduced the disparity in minimum sentences between crack and powder-cocaine offenders. In a 5-4 ruling, over the objections of the conservative justices, the Court declared that the new, more lenient rules applied to defendants who had committed their crimes before the 2010 law came into effect but who were sentenced afterward. The ratio is still too high -- 18-to-1, by congressional decree -- but the 2010 law and the 2012 ruling were significant advances toward a just cause.
That same week in June, an important new federal civil-rights lawsuit was filed in Denver, alleging the mistreatment and abuse of mentally ill prisoners at the nation's most famous prison, the ADX-Florence "Supermax" facility in Colorado. The litigation is still in its nascent stage, but the complaint highlights some of what Gopnik and Jarecki each chronicled. If the courts permit the case to proceed to discovery, and thus force the Bureau of Prisons to answer under oath for the conduct of its prison officials, Congress will have little choice but to intercede, the same way the Obama administration ultimately was pressured into doing something this year about juvenile rape in prison.
Then, in November, voters in California decided finally to minimize the effects of its "three strikes" law -- which is only partially responsible for the fact that the state's prisons are so dangerously overcrowded that the federal courts have ordered the release of thousands of prisoners. Voters there also came close to gutting the state's costly, ineffective, and unfair death-penalty regime -- nearly 6 million California residents voted to end capital punishment, an extraordinary outpouring of support for an idea which is growing in popularity all over the country.
That same month, voters in Colorado and Washington voted to legalize marijuana for recreational use, a dramatic break from both federal law and policy. Why didn't the Obama administration immediately crack down? Why do conservatives like Pat Robertson want to reduce the nation's prison population by decriminalizing marijuana? As Robertson said in March, "California is spending more money on prisons than it spends on schools." Last month, a federal judge in Iowa, Mark W. Bennett, who appeared in Jarecki's film, wrote a poignant piece in The Nation. "If we don't speak up, who will?" he asked.
To his immense credit, Jarecki is speaking up. He says his film is no advocacy piece but rather a movie "driven by real people's stories." But the advocacy is there, in virtually every scene. The "real people" Jarecki shows us are complex individuals, generators of sympathy and empathy, outrage and sorrow, sometimes all at the same time. And in that sense, if no other, they are powerful tribunes for the message he seeks to send: Drug crime is caused by drug addiction, drug addiction is a public-health matter, and all of us pay in one manner or another for short-sighted policies that treat drug abuse as a matter for the criminal courts.
Jarecki contends that the "war on drugs" is more warlike than any of us are willing to believe and that it has been waged disproportionately for decades on America's poor. If every lawyer, judge, cop, prison guard, politician, policymaker, and economist in America saw this film, fewer families might be devastated by the "lock-em-up" approach to the problem. And fewer taxpayers would have to foot the bill. Here is my interview with Jarecki, conducted by telephone on Dec. 23.
COHEN: Your work touched upon many different components of the failed war on drugs. If you had to choose two sentences to describe the film -- two thesis sentences -- what would they be?
JARECKI: Well, you described it as a failed war on drugs and I'm delighted to hear you refer to it that way. If there are two sentences that my film wants to communicate, it's that the war on drugs has failed and must be thrown on the ash heap of history as a kind of accident from which we must move on. The second sentence is that what was wrong with it from the start must be corrected -- namely, that it took a public health concern, drug abuse, and treated it instead as a criminal matter, and by doing so has made an explosion in our prison population of incarcerating the nonviolent as through they were violent.
COHEN: The Holocaust. You went there. Can you share a little bit of your thinking into why you made that analogy toward the end of the film? I can imagine some folks, including people who generally are sympathetic to the movie's message, won't quite get the comparisons. Have you received any blowback?
JARECKI: Almost none, and I think it's because the framing of the message by David Simon, who created The Wire, and by Richard Lawrence Miller, the historian who drew his analogy from Raoul Hillberg's analysis of what went on in the Third Reich. All of them work with great surgery to ensure that they are not making some kind of clumsy, ham-fisted analogy that blurs the differences between discrete elements of history.
Anyone with a scalpel involved in that enterprise will find that there are discomforting patterns that mankind has engaged in, where we have seen groups persecuted by the larger society, often predicated on some habit of the theirs, or practice of theirs, or custom special to a group. As someone who comes out of the Holocaust experience, as the child of survivors, I take any analogy of the Holocaust with great seriousness. But if one is surgical and is learning from that horror that so impacted my family, then history is finally being the educator that it's supposed to be.
COHEN: One of the most powerful components of your film was the use of old footage to show just how bipartisan has been the zeal to wage this war on drugs. Did you go back to some of the politicians whose speeches you cited -- like Vice President Joe Biden or Bill Clinton -- and ask them whether and to what extent their views have changed on the failed war on drugs?
JARECKI: No, we didn't in the case of Bill Clinton and Joe Biden. We did in the case of current policymakers because the film was not really designing itself to give a platform for mea culpas or for expressions of regret by former policy makers. My film is dominated, the screen time is dominated, by these individual stories of people whose lives are like directly touched by the war on drugs. It's more a revenge of the voiceless truth than it is a perpetuation of the top-down structure.
COHEN: You talked to a federal judge and police officers and journalists and investigators, and they all were very poignant, each in their own way. But there wasn't a current prosecutor of victims' rights voice, at least none that I can remember. Were these people simply unwilling to involve themselves in the project?
JARECKI: When we approached people who were active prosecutors, they were a little bit more uncomfortable in appearing. And I think the reason is that the war on drugs is very hard to defend these days. Its track record of failure is so vast, and so manifest, that you find greater defensiveness, greater anxiety, about communicating.
But also, interestingly enough, I don't see the prosecutor as the villain in the equation. I think prosecutions in America are villainous but I think it's the laws as written by Congress, namely the mandatory minimum sentencing laws, that have so warped the administration of justice in our courts. That overly empower the prosecutor and disempower judges.
Americans always like a good villain, and one of the reasons they like it is that it makes the world safe for them to be apolitical. So I didn't want to put prosecutors on screen who might have come across as provocative, tough-as-nails, tough on crime. Because if there is a good villain in the movie, then they can just blame that guy.
COHEN: Along the same lines, I like the idea of traveling to prisons to share the film with inmates and prison officials. But what about the idea of taking the film, and your message, to places of political power, like police and prosecutors' conferences? Have you received any invitations to take your show into this hostile territory?
JARECKI: We've done that. We have been at several conferences with law enforcement people, we've been at conferences with DAs, conferences of sheriffs, conferences of judges, conferences of defense lawyers. It's a very fundamental part of our plan, alongside what we do in prisons, churches, schools, and community centers, to people who are on the receiving end of the war on drugs power rather than the enforcement end. We show it to the powerful and the powerless.
COHEN: And what has the reaction been when you've gone to a prosecutors' conference?
JARECKI: We get a very good reaction. It's about what they think about the most, so it's about their world, and they certainly have a great interest in that. I think they believe that the people are treated with great fairness in the movie. All the characters are very textured people. You don't have caricatures walking around; you don't have a cop as a simplistic person made out to look like he's a heartless, tough monster. And you don't have drug dealers made out to be savage monsters who have only the worst interests of society at heart.
In general, and from both ends of the spectrum, what I always find when I go out with a camera is how rich and textured and majestic people are. And I capture that on screen and that's really what I do, my best contribution.