We Need A New Movement for Justice and Equality

Fifty years ago, Black people of all walks of life - maids, factory workers, drivers, sharecroppers, teachers, hairdressers, undertakers and others took to the streets in protest of segregation and discrimination. They engaged in decades long campaigns to secure voting rights, access to education, employment opportunity and redress from discrimination. Lives were lost and many people suffered along the way, but thanks to their efforts and sacrifice Black communities made significant economic and social advances, particularly in the South. Unfortunately, the past two decades has seen the steady erosion of that hard won progress. The election of Barack Obama not withstanding, our communities are facing some critical challenges.

Unfortunately, the short term prognosis for many of our communities looks grim. Black youth unemployment in major cities is already in excess of 25%. Overall Black unemployment has long been in double digits. Recent reports have confirmed the disproportionate impact of the mortgage crisis on Black communities. Pres. Obama's economic stimulus plan will help ameliorate some of these problems, but it will take significant policy change - in education, criminal justice, employment development, housing and health to reverse the damage of decades of malign neglect.

There's little dispute about the reality of mass incarceration in the US and its impact on African-American men. Because of racially biased law enforcement, punitive drug laws and sentencing policies Black men are incarcerated at rates more than 10x higher than rates for whites engaged in the same activity. We decry the lack of responsible Black men in our communities but don't see the relationship between their absence and the zero tolerance policies we've adopted and enforced over the past three decades that have effectively created the aptly named "school-to-prison pipeline".

Where is the movement in our communities today to promote the kind of policy changes needed to reverse these trends, especially in the area of criminal justice? Do we really think we can change the trajectory of our youth by only focusing on the schools? We have to change the institutional policies and practices that create barriers to their long term success. How many of us would have the careers and lifestyles we do if our youthful mistakes were criminalized and punished the way they are for thousands of poor Black and Brown youth today? We don't protest the daily police harassment and railroading of our people - we only raise our voices when someone is seriously injured or killed - and only then if the person is perceived as an "innocent" victim. No one mourns the death or incarceration of Black men labeled as 'criminals' or 'gangbangers'.

A recent PBS documentary entitled Crips & Bloods: Made in America included the startling fact that in the gang warfare between the groups just in this small geographic area of Los Angeles, has claimed the lives of more than 15,000 people. That's more than the number of US soldiers lost in both Gulf wars. How many of us know that? How many of us care enough to do something about it? Clearly not the media, which hardly ever covers it, except to decry the violence and promote more gang suppression activities.



Did you know that in 2007 the NYPD made more than 500,000 "stop and frisks"? More than 60% of those stops were of people of color, even in neighborhoods where they are a minority of the population. Less than 1 in 10 stops led to any police action - (e.g. ticket or arrest) but the City still maintains there is insufficient evidence of racial bias. Did you know thousands of young New Yorkers (mostly Black and Latino) are arrested every year for being in a public housing building other than the one they live in - aka 'trespassing'? Did you know that since the implementation of the "zero tolerance" policing policies adopted by former Mayor Giuliani - more than 360,000 New Yorkers have been arrested, booked, detained and arraigned for possessing small amounts of marijuana? Would you be surprised to know that 85% of the arrestees are Black and Latino young men under the age of 25? Did you know that NYS decriminalized marijuana possession in 1977 to "protect young people from the stigma of arrest" for a basically victimless offense?

All these facts are known to the public, especially in African-American and Latino communities, yet there is little public outcry. Mayor Bloomberg has received scant criticism for maintaining the Giuliani policies or extending them by:

• increasing the number of police in NYC public schools;
• reducing availability of affordable housing;
• limiting community control of neighborhood schools and overruling the will of the public with respect to term limits.

Right now it appears he will be reelected with significant support from Black elected officials and community leaders. While I have a great deal of personal respect and regard for many of our leaders, it does feel like they've dropped the ball with respect to these important concerns.

A notable exception is Virgina Representative Bobby Scott, sponsor of the Youth Promise Act.
This legislation if enacted would begin to address some of the root causes of gang violence by redirecting resources towards education, job training, life skills development and family strengthening. The bill has picked up a fair number of supporters in the House but it passage is far from assured. Below is a video of Rep. Scott talking about the bill.



You can support this effort -visit Hear My Votes where you can download an app that lets quickly email or telephone your Congressional representatives.
http://www.hearmyvotes.com.

Bringing Up the Rear: African-American Ministers and Marriage Equality in New York

This week New York made a significant step towards being the next state to endorse marriage equality. A bill that gives legal recognition to same sex couples passed by the State Assembly by a wide margin (89-52) and is now headed to the State Senate were its adoption is more doubtful. The measure is supported by Governor David Patterson but recently polling suggests that New Yorkers are still very divided on the issue. Some have suggested that Gov. Patterson’s views are not in step with the majority of the state’s African-American voters and have cited a new poll from Quinnipiac University to demonstrate a race-based divide with regards to marriage equality. The poll highlighted the difference in attitudes between groups of New York voters over marriage equality with African-Americans opposed (57%-35%) and White voters more supportive (47%-45%) . Upon closer examination what the poll actually highlights is the role of religious leaders in promoting and/or reinforcing opposition to extending marriage equality to gays and lesbians. According to the poll voters who attend religious services at least once a week oppose same-sex marriage 66%-26%, while those who attend services less frequently support same-sex marriage 56%- to 36%. Odd, isn’t it that less frequent church attendance generates more tolerance - not less. Hmm. (As Stephen Colbert would say, “Yahweh” or the [nice] way, I guess, I’ll pick Yahweh.......)

So what to make about the role of Black clergy as potential agents of intolerance? Let’s start by defining what the issue is about. Contrary to the assertions of many religious leaders the issue is marriage equality. It’s not about whether the church, Black or White, Christian, Muslim, Jewish, Mormon or other approves or sanctions gay and lesbian lifestyles. Gay and lesbian couples are asserting the same right to have their committed relationships recognized by law ~ the definition of marriage - as heterosexual people do.

mar·riage [ márrij ] Definition: 1. legal relationship between spouses: a legally recognized relationship, established by a civil or religious ceremony, between two people who intend to live together as sexual and domestic partners

The belief that the purpose of marriage is to procreate is a socially conventional and religious based definition of the purpose of marriage - which is perfectly appropriate in determining church policy - but not in determining legal policy. It also is not consistent with the reality of how we currently live when many couples marry (for the second or third time) long past their time for procreation and many children have parents who've never married.

It’s important for Black communities to remember that less than 50 years ago, marriages between Blacks and Whites were still illegal in most of the U.S. Some of the reasons given to justify the legal proscription were very similar to the reasons given to justify the present proscription against same sex marriage - ‘it wasn't natural’; ‘God meant people to marry within their race’; ‘it threatened social stability’ and would ‘lead to violence’; it undermined the sanctity of “traditional white marriages”. Lest you think I exaggerate, below is an excerpt from the speech delivered by Georgia Congressman Seaborn Roddenberry, when he introduced a bill in Congress proposing a national ban on interracial marriages:

"No brutality, no infamy, no degradation in all the years of southern slavery, possessed such villainious character and such atrocious qualities as the provision of the laws of Illinois, Massachusetts, and other states which allow the marriage of the negro, Jack Johnson, to a woman of Caucasian strain. [applause]. Gentleman, I offer this resolution ... that the States of the Union may have an opportunity to ratifty it. ... Intermarriage between whites and blacks is repulsive and averse to every sentiment of pure American spirit. It is abhorrent and repugnant to the very principles of Saxon government. It is subversive of social peace. It is destructive of moral supremacy, and ultimately this slavery of white women to black beasts will bring this nation a conflict as fatal as ever reddened the soil of Virginia or crimsoned the mountain paths of Pennsylvania. ... Let us uproot and exterminate now this debasing, ultra-demoralizing, un-American and inhuman leprosy"
Congressional Record, 62d. Congr., 3d. Sess., December 11, 1912, pp. 502–503.

This sentiment has not entirely disappeared from our culture, but it’s certainly much diminished. Here’s a link to an interesting analysis of relatively recent polling data on U.S. attitudes regarding interracial marriage. It occurred to me while reviewing it, that in some ways it closely tracks national voting patterns for President Obama.

While we're on the subject let’s not forget that less than 200 years ago it was illegal for our ancestors here in the U.S. (in most of the country) to marry at all! Even where Blacks were able to legally marry, that status did not guarantee a Black man the same rights as a White man to protect his wife, children and loved ones from mistreatment or assault - a reality that has profoundly impacted relationships between the sexes to this day. This history makes me suspect of justifications used to deny others the same rights our people fought so hard to acquire. As Dr. King so eloquently stated, “Discrimination is a hellhound that gnaws at Negroes in every waking moment of their lives to remind them that the lie of their inferiority is accepted as truth in the society dominating them". Just substitute the word "gay" or "lesbian" and the principle is the same.

Unfortunately, we don’t have enough religious leaders like Dr. King articulating clear moral principles and spiritual guidance based on love, not fear. But then I remembered, the truth is ~ we never did. Brave, courageous religious leaders like Rev. E.D. Nixon, Rev. Adam Clayton Powell, Jr., Rev. Ralph Abernathy, Minister Malcolm X and Rev. Nat Turner were the exception, not the rule. Throughout our history in the U.S. traditional Black clergy have occupied the caboose on that “long train to freedom”. Most Black southern ministers supported Booker T. Washington in his accommodationist approach to segregation and black-white relations. In 1961, the Progressive Baptist Convention went on record as opposing Dr. King and his strategy of nonviolent civil disobedience as being too confrontational. The Black church was late to support the movement for women’s rights (although Black women comprise a disproportionate number of women living in poverty); was late to recognize the potential and power of Barack Obama’s candidacy (most religious leaders were early Hillary supporters) and because of persistent and pervasive homophobia - they were late to recognize the health threat to poor Black communities posed by HIV/AIDS, with predictably dire results.

Too many Black religious leaders have asserted the right to deny equal rights to gays and lesbians in much the same way prior generations of religious leaders justified segregation and political disenfranchisement, or tolerated persecution and discrimination in the hope of heavenly reward. Many of the early civil rights leaders, defied their local preachers to follow then young upstarts like - Dr. Martin Luther King, Jr. and Malcolm X; last year many congregants ignored their pastors and cast their vote for the young upstart Barack Obama; hopefully many will do the same this year by voting their conscience and values instead of their doctrines. Perhaps their ‘religious leaders’ will choose to follow their example. Let's not forget the essential issue is not sexual orientation - but equal rights under the law......... Which side are you on?
Posted Sunday, May 17, 2009 at 10:33 PM
Deborah Small |

Torturous Contortions

As an American citizen who cares about this country and its status in the world I have been increasingly dismayed at the tenor and direction of the conversation regarding the use of torture against detainees held by U.S. force in the secret "black sites" abroad as well as Guantanomo Bay and Abu Ghraib prisons. Rather than being appalled by the Bush administration's deliberate subversion of the law in order to justify clearly abusive treatment of human beings held in our custody, the conversation has centered on whether these techniques "work" in producing "actionable intelligence" and if they should be permissible under some hypothetical doomsday scenario. What's disconcerting about all this is that it calls to mind the conversation that dominated the public debate during the lead up to the Iraq war. Bush administration officials conjured up the doomsday scenario of "the smoking gun in the form of a mushroom cloud" with respect to WMD in order to silence critics who questioned the necessity for war. Such talk diverted attention from the essential question of whether Iraq posed a real threat - it was only after the U.S. invaded Iraq that we learned there were no WMDs.

Fast forward to the present. President Obama has categorically stated his opposition to the use of torture or as it's euphemistically called, 'harsh interrogation techniques'. He correctly - in my view - released the legal opinions used to authorize torture and descriptions of the specific techniques employed. To anyone who questions the legitimacy of the legal opinions generated by lawyers in the U.S. Justice Department, I suggest you read them. They are a shameful attempt to circumvent the rule of law by asserting an interpretation of the applicable statutes that makes Bill Clinton's parsing of words seem amateurish. John Yoo's interpretation of "executive privilege" would make the Founding Fathers role over in their graves. The claim that the attacks on Sept. 11, 2001 were of such an extraordinary nature that it necessitated the assumption of supreme war time powers is simply not credible. The drafters of the Constitution created it in the aftermath of war and were acutely aware of the needs of a strong military commander - nonetheless they instituted a system of 'checks and balances' as a form of insurance against domination by any branch of government, to apply at all times, including times of war. The truly sad part is that the media - which is supposed to be independent - dutifully played their assigned roles as scribes instead of investigators. It appears with respect to the torture issue they're following the same tired script.

The public needs to be engaged in a discussion of the myriad reasons the international community has outlawed torture and why the U.S. has long supported that position - instead we are debating the wisdom of making the evidence of torture public and acting as if adherence to the Geneva Conventions constitutes some undue burden that unreasonably restricts our freedom - like say, taxes or gun laws. I think it bears repeating - as often as necessary to sink into public consciousness - the REASONS TO OPPOSE TORTURE:

1. TO PROTECT YOUR SOLDIERS WHEN THEY ARE CAPTURED IN BATTLE!!! Notice I said when - not if, because if you are fighting war(s) you will have soldiers that are captured in battle and unless your opponent executes them on the spot (also considered a war crime) you want them to be treated humanely until the conflict is over and/or you negotiate their return.
2. TO AFFIRM THE EXISTENCE OF BASIC STANDARDS OF HUMAN RIGHTS CIVILIZATION IS EXPECTED TO ADHERE TO. The Universal Declaration of Human Rights affirms the fundamental dignity and worth of all persons and the basic equality of men and women. It commits UN member states to protect these rights in part because, "it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law". I don't understand the theory that believes an effective way of fighting terrorism and reducing new recruits it to engage in human rights violations against people from the group we need to win over.
3. IT DOESN'T WORK!! Who really doesn't believe that torture compromises the integrity of the information elicited from the victim. At a certain point people will what they think their captors want to hear in order to stop the pain. Read the accounts from the International Red Cross report (IRCR) and ask yourself how long could you withstand such treatment?
4. THE "HARSH INTERROGATION TECHNIQUES" ARE TORTURE UNDER THE GENEVA CONVENTION, US STATUTORY LAW OR ANY CONTEMPORARY UNDERSTANDING OF THE WORD. Some people have questioned whether in fact the "harsh interrogation techniques" were in fact torture. I've heard several commentators suggest (including Joe Scarborough on MSNBC) that perhaps 'waterboarding' was torture but the other techniques were not, and after all, only three (3) of the most dangerous 'terrorists' were waterboarded. To put this argument to rest I include the following excerpt from the Red Cross report setting forth the list of techniques employed in interrogating detainees at the secret "black sites" abroad as well as Guantanomo and Abu Ghraib:

"The CIA seems to have arrived at a method that is codified by the International Committee of the Red Cross experts into twelve basic techniques, as follows:

Suffocation by water poured over a cloth placed over the nose and mouth… Prolonged stress standing position, naked, held with the arms extended and chained above the head… Beatings by use of a collar held around the detainees’ neck and used to forcefully bang the head and body against the wall… Beating and kicking, including slapping, punching, kicking to the body and face… Confinement in a box to severely restrict movement… Prolonged nudity...this enforced nudity lasted for periods ranging from several weeks to several months… Sleep deprivation...through use of forced stress positions (standing or sitting), cold water and use of repetitive loud noises or music… Exposure to cold temperature...especially via cold cells and interrogation rooms, and…use of cold water poured over the body or…held around the body by means of a plastic sheet to create an immersion bath with just the head out of water. Prolonged shackling of hands and/or feet… Threats of ill-treatment, to the detainee and/or his family… Forced shaving of the head and beard… Deprivation/restricted provision of solid food from 3 days to 1 month after arrest… The Red Cross writers tell us, “each specific method was in fact applied in combination with other methods, either simultaneously or in succession

I don't know anyone (myself included) that would not feel they were being tortured if subjected to such techniques - particularly if they occurred over a prolonged period of time with no hope of release or relief.

I'm old enough to remember the public debate over the release of the information about the Mai Lai massacre and subsequent court martial of Lieutenant Calley for ordering the murder of an entire village of defenseless Vietnamese. At the time many Americans were sympathetic to the anger and frustration of soldiers who had lost many of their comrades during the Tet Offensive and were suspicious of civilians who often harbored enemy combatants. However, the majority of Americans favored accountability and affirming the rule of law. Despite the known hardships and stress our soldiers were experiencing, American integrity was on the line, it was considered unthinkable that such crimes should go unpunished.

So it is here. Our integrity and moral authority is at stake. We can't use terrorist tactics against 'suspected terrorists' and expect to win the 'war on terror'. The ends do not justify the means. Which is why we condemned apartheid South African authorities for torturing members of the African National Congress (when they were fighting their insurgent war of liberation) and the North Koreans for torturing US prisoners of war.

Which brings me to my final point. It's the pervasive sense of U.S. exceptionalism - the notion that everyone else is supposed to play by the rules but we get a free pass - that we can do what we want to protect ourselves from military attack, economic collapse or ideological invasion - that got us into the mess we are facing today. Former President George W. Bush epitomized the swaggering, arrogant, tunnel-vision, self-righteous attitude that dominated both government and the business community over the past decade.

In voting for Barack Obama as the 44th President we pretty much voted for the opposite of that and in most essential ways, President Obama is delivering on his campaign promise of CHANGE WE CAN BELIEVE IN. One major change this President is asking us to make is to admit the truth - "our government did commit acts of torture" and make the necessary changes in both word and deed to insure we NEVER DO IT AGAIN. That would be change the world can believe in - particularly, the Arab world...............

Street Soldiers: Warfare American Style

Last night my local PBS station aired an amazing documentary that should be viewed by anyone concerned about the current state of young Black men growing up in the abandoned neighborhoods that exist in every major U.S. city. The film is entitled: Crips & Blood - Made in America. For those who saw the 2006 documentary Bastards of the Party, it tells a similar story. Both films are about the history of the Crips & Bloods - the gangs that took root in South Central Los Angeles more than 25 years ago, wreaking havoc on the lives of gang members and the neighborhoods they inhabit. So far the warfare among these two primarily African-American gangs have claimed the lives of more than 15,000 - primarily young people. And that's just the number of the murdered - it doesn't include the number who've been permanently maimed or injured or the tens of thousands languishing away in California's numerous and overcrowded prisons.

The men interviewed for the film describe themselves as growing up in a war zone where to show any sign of weakness or emotion (other than anger) is to risk serious harm or even death. Most acknowledged getting their first gun in their early teens. Because the war has been going on so long - there are now successive generations of Los Angelenos that know nothing except gang membership, shootouts, violence and death. They decried the lack of a father or other positive male role model in their lives and it's obvious that for many, the 'cool' posture and tough image they project is a cover for the pervasive fear and unspoken longing that's just below the surface.

The commentators and community activists discuss the various public policy decisions that have helped create these conditions and keep them in place -

• the decision to invest in prisons over education - California incarcerates more Black men each year than graduate from the state's colleges and universities;
• California has reduced funding for education - especially higher ed at the same time it has engaged in massive prison expansion (it's one of the many consequences of having an aversion to taxes and an attachment to cowboys);
  
• Until recently, the principal response to gang violence has been increased law enforcement and surveillance - particularly of young, Black men in and out of South Central LA;
  
• The adoption of mandatory minimum sentencing, three-strikes and no parole policies have removed large numbers of men from the community for long periods of time - the combination of long incarceration and post-conviction sanctions means that involvement in the criminal justice system becomes a lifetime barrier to advancement and mainstream life, regardless of ability and personal rehabilitation;
• The failure to fulfill on promises for community investment and political inclusion - (after the 1992 rebellion the city created 'Rebuild LA' with a promise of job creation, business development and committed attention to the problems of the area - within 18 mos the initiative was abandoned and with it the fragile truce between the Crips & Bloods)
• The failure of the media to consider urban warfare as newsworthy despite the high number of casualties. There's plenty of media coverage of school shootings which claim the lives of young people in affluent and/or suburban communities, but as noted recently by Bob Herbert in the New York Times, the media is virtually silent about the killings of Black and Latino youth.

One can debate the degree of personal responsibility one should take for the choices one makes in life - but to listen to these brothers it's clear they didn't feel they had a choice. The options available to them in the environment in which they live dictated in the words of one, "I had to put my moral feelings and thoughts aside and become an animal in order to survive".

The film ends on a hopeful note - it features the organized effort of former gang members and formerly incarcerated men to redirect the lives of young men who would otherwise follow their path. They are working in the community to address the fear, anger, frustration, desperation and nihilism that continues to define life for many Black and Latino youth. Most are working without resources and support from local government. Clearly, that needs to change. But more importantly, we need to think about the message we send as a society that continues to endorse war - against real and imagined enemies; that continues it's love affair with guns - including semi-automatic weapons and assault rifles (don't believe the founding fathers had those in mind); elevates results over means (e.g. doesn't matter how you made your $$$ as long as you have it - think Wall St. or doesn't matter if you break int'l conventions and torture people as long as the results are useful). Whether we like to admit it or not - our youth are watching, listening and learning. The Crips & Bloods are a mirror into an aspect of America we prefer to regret - the country that suppressed Black people with fear and violence; that virtually exterminated Native Americans in the name of 'manifest destiny' and believes in an economic system that benefits the few at the expense of the majority............................ These brothers are seeking to make change for themselves and the next generation - the question is will we be enablers of change or continue to maintain the same institutional barriers?

Cognitive Dissonance

There is a basic disconnect in the attitude of Americans between what they believe to be true and what they are willing to tolerate in the name of 'public safety'. Some examples:

1. The majority of Americans believe the "harsh interrogation techniques" used on prisoners at Guantanamo and Abu Ghraib constituted torture under both the Geneva Conventions and U.S. law, yet they are willing to allow people to be subjected to such treatment, if it is necessary to protect 'national security' - i.e. avoid an imminent terrorist attack.

2. The majority of Americans believe racial profiling is wrong but they are willing to tolerate it to: (a) facilitate the identification of 'illegal aliens' (e.g. Sheriff Joe Arpaio's roundups in Arizona) or (b) target potential 'terrorists' (e.g. profiling of Arabs and sometimes Sikh's at airports, etc.) and (c) to justify the exclusion of "troublesome" - usually Black & Brown - youth from public spaces (e.g. malls, street corners, parks in cities throughout the U.S. of which the Maryland example is just one)

3. The majority of Americans believe we are not winning the "war on drugs" and that it is unwinnable, yet they are willing to tolerate (a) the disproportionate arrest, conviction and incarceration of Blacks and Latinos for minor drug offenses; (b) the arrest of more than 700,000 Americans annually for marijuana possession - primarlly youth of color; (c) the continued violence on our border with Mexico driven by America's insatiable appetite for illegal drugs (the majority of which are not consumed in poor inner-city neighborhoods) as well as our unwiliingness to deal with the gun lobby; and (d) the escalation of the war in Afghanistan with the mission of suppressing the cultivation of poppy to limit the ability of insurgents to use drug profits to finance their operations (didn't we try this in Colombia and Nicaragua and Boliva? How well did it work there?)

Our politicians and media would rather talk about John Edward's infidelity, Michael Steele's buffoonery and Dick Cheney's Orwellian view of history rather than address any of the above issues on anything but a superficial level and we let them. So what does that say about us?
Postscript: What ever happened to the investigation into the roots of our current economic crisis? With all the focus on the bank bailouts and various stimulus plans, the reasons we got into this mess seems to have faded from view. Unfortunately, the institutional forces that led to the crisis are still in place so it's in the public interest to understand these forces so we can develop appropriate and effective regulations and safeguards - but don't count on Washington to light the way - they're in the pockets of these forces - pay attention to the battle over the legislation to limit credit card fees.

Repeating Past Mistakes

“Those who cannot remember the past are condemned to repeat it.” George Santayana

Last week I traveled to Ottawa to give testimony to a Canadian Parliamentary Committee reviewing legislation to establish federal mandatory minimums for drugs and weapons offenses. The Committee on Justice and Human Rights heard testimony on Bill C-15, legislation introduced by the Conservative Party to enact mandatory minimum sentences for drug offenses in Canada.

Bill C-15 creates minimum prison terms for a variety of drug offenses (i.e., trafficking, possessing for the purpose of trafficking, importing or exporting, and producing) involving any quantity of controlled substances such as heroin, cocaine and amphetamines. If passed into law, Bill C-15 would, among its other provisions, impose mandatory sentences on people caught with one marijuana plant for a minimum of six months. If growing a single plant is done on a property that belongs to another person or in an area where it may present a hazard to children, minimum jail time is nine months. It also mandates longer sentences for persons convicted within 10 years of a previous offense.

I was one of the "expert witnesses" invited by the Committee to provide evidence to help inform deliberations. Along with six other witnesses we testified to the evidence demonstrating the ineffectiveness of mandatory minimum sentencing in addressing the problems of drug-related crime and violence. Yet, it seemed clear from the comments of the Committee members and public record of proceedings to date, that the Canadian Parliament will ultimately approve this misguided legislation in its desire to appear “tough on crime” and make constituents in British Columbia believe it is ‘doing something’ about the gang violence that has plagued communities, particularly in Vancouver as it prepares for the upcoming Olympic Games in 2010.

I was invited because of my involvement in the successful campaign to reform New York's infamous Rockefeller Drug Laws (RDL). The history of these laws, their conception and implementation, should serve as a cautionary lesson of how easy it is to enact bad criminal justice policy and how difficult it is to repeal it – even when there is strong consensus for change.

In 1973, New York Governor Nelson Rockefeller, frustrated about the perceived failure of his drug treatment initiative, angry over the inmate rebellion at the state prison in Attica and looking to improve his political image with conservative Republicans who thought he was too liberal – proposed legislation to make New York’s drug laws the “toughest in the country”. When Gov. Rockefeller first announced his new “get tough” approach to drug dealers and users, the proposal was decried by all including the states prosecutors and judges as ‘harsh, vindictive and unworkable’, however by taking such an extreme position Rockefeller accomplished his goal of moving everyone else to the right by forcing others to take a harder line on drugs than they ever had before.

The RDL enacted later that year, mandated prison terms for numerous drug-trafficking crimes based largely on the weight of the drug sold. A first-time offender convicted of selling two ounces or possessing four ounces of heroin or cocaine received a mandatory sentence of 15 years to life--the same as the penalty for murder. Possessing as little as half a gram of cocaine or heroin triggers a minimum sentence of at least one year. Also enacted in 1973, the Second Felony Offender Law (SFOL) required with some exceptions a mandatory state-prison term for persons convicted of a second felony offense within 10 years of the first. Under New York’s criminal statutes the sale or attempted sale of any amount of a controlled substance is a Class B felony punishable with imprisonment.

As a result of his newly tough stance on drugs and ‘welfare cheats’, Rockefeller was successful in rehabilitating his image among Republican Party leaders. By 1974 he had sufficiently reformed himself that there was little objection to his selection by Gerald Ford as his Vice-President when he assumed the Presidency upon Nixon’s resignation. His time on the national stage was short-lived, by 1977 his political career was over and he was back to private life. He died of a heart attack in 1979. That same year Governor Hugh Carey and the state legislature agreed to reform some of the harshest aspects of the law following the recommendation of a commission of lawyers and prosecutors that found:

“In too many cases the 1973 drug laws, because of their mandatory and inflexible nature, require penalties which are out of all proportion to the seriousness of the offense or the criminal history of the offender”.

The Rockefeller Drug Law: After 6 Years, Officials Question its Effectiveness – Carey and Legislative Chiefs Planning Changes,
Tom Goldstein, NY Times, May 14, 1979.

In their first 20 years, the SFOL, the RDL, and other anti-drug laws combined for a steep and steady rise in the portion of incoming prisoners whose last convicted crime was a drug felony. In 1980, a drug crime was the most serious conviction offense of 11% of the state's prisoners (886 people). By 1993, that fraction had risen to 44 % (10,939 people). The RDL came down hard on people who were not exactly kingpins. In a 1993 case, an appeals court reviewed the sentence of Jesus Portilla, an asbestos remover with a wife and small child. A first-time offender, he had received a sentence of eight and a third to 25 years for a $30 cocaine sale.

The assertion that mandatory minimum drug sentencing policies can be justified as an effective deterrent to crime has been discredited by numerous studies and analysis of the impact of such laws. This criticism has not been limited to those with liberal beliefs about politics and crime – conservatives, including some who previously espoused ‘tough on crime’ approaches have called for the repeal of mandatory minimum drug sentences. John J. DiIulio Jr., a criminologist is emblematic of this shift. DiIulio was initially skeptical of the notion that drug laws imprison large numbers of people who are not menaces to society. But by 1995 DiIulio became an outspoken critic of current sentencing policy and called for the repeal of New York’s RDL. “It seems to me that with respect to these drug offenders, the mandatory minimums have begun to go haywire.” He went on to say the following in a notable article in the National Review:

“There is a conservative crime-control case to be made for repealing mandatory- minimum drug laws now. That's a conservative crime-control case, as in a case for promoting public safety, respecting community mores, and reinstating the traditional sentencing prerogatives of criminal court judges. . . . To continue to imprison drug-only offenders mandatorily is to hamstring further a justice system that controls crime in a daily war of inches, not miles, and that has among its main beneficiaries low-income urban dwellers.”

After more than 35 years of harsh mandatory drug sentencing the political consensus for change in New York reached a tipping point. This year the New York State legislature finally did what the public has been requesting it do for years – it voted to repeal most of the remaining vestiges of the Rockefeller drug laws. It is ironic that Canada is considering enacting a law very similar to the one it took us so long to undo in New York. It would be a shame if Canadian politicians repeated our mistake; the harms caused by 35 years of bad sentencing policy will take a long time to repair.

For many years, drug policies have been shaped by public concerns and political pressures that have been indifferent to the need for proportionality. Many factors--the persistence of drug use and abuse, racial undercurrents, a fear of crime, and an unwillingness to tackle social inequalities, among others--encouraged politicians and public officials to embrace inordinately tough sentences for drug felonies. Canadians should not be taken in by those claiming the answer to the drug problem is to “get tough”. The evidence of the past thirty years clearly shows that we don’t need to be "tough on crime"; we need to be “smart on crime”. Being smart means investing in what has been demonstrated to work – evidence-based drug treatment; effective drug education; proactive family support programs and early and continuous support for ‘at-risk’ youth. In this way we demonstrate societal commitment to invest in people, not prisons, to show compassion, not indifference, to help, not punish. Right-thinking Canadian legislators must defeat Bill C-15!