Volume 51, No. 2 of the Harvard Journal on Legislation is now available on the JOL website!
Over lunch on February 11 and 12, the Harvard Law School Journal on Legislation hosted its annual symposium. This year’s topic, Drug Policy: Reality and Reform, proved timely and engaging to members of the Harvard Law community. Welcoming a standing-room-only audience to hear from some of the field’s leading experts and authorities, JOL succeeded in creating a meaningful dialogue around a topic seeped in critical statutory and policy implications.
The first panel opened with brief remarks from Jeffrey Miron, a Senior Lecturer on Economics at Harvard University who is known for his economic insights on the war on drugs and other related topics. The discussion, moderated by Harvard Law professor and former Deputy U.S. Attorney General Phillip Heymann, jumped immediately to brief historical accounts of the drug war, focusing specifically on an aspect which all panelists had dealt with in their careers: mandatory minimums. The perspectives ranged from academic theory to first-hand accounts from a former judge and the state director of a national non-profit organization working on the topic.
Former federal judge for the District of Massachusetts Nancy Gertner and John Pfaff, Associate Professor of Law at Fordham Law School, opened the conversation with detailed perspectives on the impact of mandatory minimums for drug offenses. Gertner recalled instances during her judicial career where she would have to sanction an offender per the mandatory minimum requirements and her frustrations, even when she felt that these minimums failed to produce the most equitable outcome. Gertner currently serves on the Board of Directors for The Sentencing Project, an organization working to advance the criminal justice system by promoting sentencing reform.
Professor Mark Osler of the University of St. Thomas Law School continued the thread of sentencing reform with his unique perspective of legal counsel in a critical sentencing case with far-reaching national impact. Osler served as lead counsel in Spears v. US where he successfully argued in the US Supreme Court that sentencing judges be allowed to reject the 100:1 ratio between crack and powder cocaine in the federal sentencing guidelines. Osler is renowned as a sentencing expert and has testified on the matter both in Congress and before the U.S. Sentencing Commission.
Finally, Barbara Dougan spoke on her experiences as state director for Families Against Mandatory Minimums (FAMM). Her organization works to reform sentencing laws in Massachusetts, and she was successful in contributing to the first-ever state drug sentencing reform in 2010. She urged her fellow panelists and the audience to remember that behind the statistics of drug sentences are individual human beings whose lives hang in the balance.
The conversation continued later in the evening during the documentary screening of “The House I Live in.” Students watched the condensed version of the film, which involved several personal narratives from offenders who had been sentenced under the mandatory minimum guidelines, experts in the field, and historians, among others.
The film was harshly critical of the drug war, and skeptically posed the question of how drugs become an actionable offense. The root of this issue, the film maintained, has unjust historical roots – early privileged classes of individuals (i.e. the elite upper-class white) used drug offense enforcement as a means of discrimination against minority populations, sentencing the minorities in order to free up jobs. The film then traced the growth of this system, discussing the political enterprising of the “war on drugs” in the 1970s and 1980s and the concentration of drug trades in low-income urban areas. The film made no pretense of being a purely descriptive documentary—its intense anti-drug war advocacy was the focus throughout. One expert in the film even claimed the systematic discrimination in the current sentencing and prison system represents a modern-day Holocaust.
After the film, students engaged in a discussion with Osler and Dougan about some of the issues brought up by the documentary. Examining the range of topics and potential drug war solutions, from sentencing reform to outright legalization, the conversation concluded with an extremely pertinent and significant observation by Dougan. She noted how people talk about the extremes, mandatory minimums and a drug war on one end and sentencing reform and legalization on the other. But all of the steps in the middle, she said, represent progress. Dougan emphasized the lack of attention given to those small increments of progress that need to happen before we can get arrive at the other end of the spectrum.
One the second day of the symposium, the topic narrowed to the area of drug policy that has been dominating the headlines: marijuana.
With Colorado and Washington in the midst of implementing legal, recreational marijuana systems and other states such as Oregon and Alaska considering the move, the momentum would seem to be on the side of the reform movement. The standing-room only audience seemed to favor this approach as well. When moderator Professor Charles Nesson, himself a strong supporter of legal marijuana, polled the students in attendance, nary a hand went up in opposition to legalization.
The panel was more divided. Nesson’s support for legality was echoed by United States Congressman Jared Polis (D-Colorado), who was conferenced into the event via skype to offer introductory remarks. Panelist Ethan Nadelmann, Founder and Executive Director of the Drug Policy Alliance, posited that ending marijuana prohibition was a moral necessity to help stem the tide of broader drug war injustices. But the opponents of legalization put up a spirited defense in front of the skeptical audience.
Massachusetts State Senator John Keenan stressed the dangers of putting yet another substance with harmful and habit-forming effects in the hands of big corporations, who would react to the profit incentives in the market and sell cannabis aggressively. With such huge societal costs from tobacco and alcohol already, Keenan said, we should not rush to make things worse with a new commercialized drug. At the very least, he concluded, we should wait to see how the experiments in Colorado and Washington develop before we adopt legal marijuana nationwide.
Charles Stimson, Senior Legal Fellow at the Heritage Foundation agreed with Keenan and discussed what he called the often overlooked negative health effects of, and number of people receiving treatment for, heavy cannabis use.
Nadelmann countered that he’d be perfectly willing to wait and see how things went in Colorado and Washington if not for the fact that hundreds of thousands more Americans, a disproportionate percentage of them minorities, would be arrested for marijuana offenses in the interim. The bad effects of marijuana, he said, were not enough to justify the worse effects of so many needless arrests and disrupted lives.
There was no exit poll, so it is unclear whether Keenan and Stimson succeeded at changing some minds. The event as a whole, though, helped give a full and well-argued airing to the positions of all sides, as did the entire symposium. JOL hopes that students and faculty employ the perspectives they gained from the symposium as they evaluate and even participate in the debates surrounding American drug policy.
– 2015 Symposium Chairs Kellen Wittkop and Colin Ross